Preparing Legislation for Parliament (Constitution Committee Report) - Motion to Take Note

– in the House of Lords at 4:28 pm on 12 June 2019.

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Lord Norton of Louth:

Moved by Lord Norton of Louth

That this House takes note of the Report from the Constitution Committee The Legislative Process: Preparing Legislation for Parliament (4th Report, HL Paper 27).

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), Baroness in Waiting (HM Household) (Whip)

My Lords, the noble and learned Lord, Lord Judge, finds himself addressing matters of sentencing in the Moses Room. By agreement through the usual channels, it has been arranged that the noble and learned Lord will speak after my noble friend Lord Dunlop. All relevant contributors to the debate have been informed.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative

My Lords, I beg to move the first of the two Motions standing in my name on the Order Paper. I do so in place of the noble Baroness, Lady Taylor of Bolton, who chairs the Constitution Committee, which has produced the two reports we are considering. She is very sorry to miss today’s proceedings.

It is a pleasure for me to open the debate. In 2004, the Constitution Committee, which I had the honour of chairing, published a report, Parliament and the Legislative Process. We looked at the legislative process holistically, examining not only the process once a Bill was introduced but what happened prior to a Bill’s introduction and after it had received Royal Assent. We took the view that success should be measured not by whether a Bill received Royal Assent—seen by some Ministers as the end of the process—but rather by whether it achieved its intended effect.

Among our recommendations were that Bills should be subject to pre-legislative scrutiny as the norm and not the exception, and that there should be a structured process of post-legislative scrutiny, assessing Acts against the criteria set for achieving their purpose. We also advanced proposals for the more effective examination of Bills as they pass through Parliament, including that every Bill should at some stage during its passage be subject to scrutiny by an evidence-taking committee. Some of our recommendations were subsequently adopted, and now form an integral part of the legislative process, such as improvements to explanatory materials and the Government undertaking a review of most Acts within six years of their commencement.

I fear that Governments have shown less enthusiasm for implementing some of our other recommendations, such as pre-legislative scrutiny of draft Bills being the norm and the establishment of a House business committee. Perhaps our most high-profile recommendation —that the Committee stage of each Bill should provide the opportunity for the public to give evidence—has been adopted for Bills that start in the House of Commons but not for those that start in your Lordships’ House. This is a matter to which the committee may return in a subsequent report.

We felt that more than a decade after our first report, it was time to take a step back from individual Bills, to look again at the entirety of the legislative process and examine how laws are developed, drafted, scrutinised and disseminated. Rather than producing one report, we decided to publish four focused reports, targeted at discrete aspects of the legislative process: preparing legislation for Parliament; the delegation of powers; the passage of Bills through Parliament; and after Royal Assent. Two of those have now been published, and are the subject of today’s debate.

The first of these, The Legislative Process: Preparing Legislation for Parliament, was published in October 2017. The purpose of this stage of our inquiry was to look at the policy preparation undertaken by the Government before legislation is introduced to Parliament. In this report, we are broadly positive about how the Government develop policy using embedded mechanisms to gather and evaluate evidence. We also welcome the Prime Minister’s commitment to a greater use of Green and White Papers.

We reiterate the conclusion of our 2004 report—that it should be the norm for Bills to be published in draft, to afford more opportunities for pre-legislative scrutiny. It is regrettable that Governments have generally seen draft Bills as an optional extra, when, in our view,

“pre-legislative scrutiny should be considered an integral part of the wider legislative process”.

Although several Bills have undergone pre-legislative scrutiny in this elongated Session, they constitute the exception, not the rule.

Perhaps the biggest area of our concern is the quality of legislation that the Government introduce to Parliament. This is not a reflection on the standards of the drafting of legislation and the work carried out by parliamentary counsel. Our concern is with the quality control function of the PBL Committee of the Cabinet. That control is not what it could and should be. In our report, we endorse the proposal for the creation of a legislative standards committee, to develop and monitor a set of standards that legislation must meet before it can be introduced. This work would ensure that Bills introduced to Parliament are ready for its scrutiny, and that the essential explanatory materials accompanying Bills are complete and satisfactory.

We also address the important parts of the statute book that have become inaccessible to practitioners and the public alike because of a succession of Bills that have amended previous Acts. One has to think only of the changes in immigration law in recent decades. The challenge of navigating that area of the law is now considerable. We urge the Government to consider the pressing need for greater consolidation of the law. With that in mind, we strongly welcome the introduction of the Sentencing (Pre-consolidation Amendments) Bill, paving the way for the Law Commission’s sentencing code to simplify sentencing legislation. The standard line from the Government on consolidation and Law Commission Bills is that they might happen when parliamentary time allows. Given the current lull in legislative activity, this might be an especially appropriate time to introduce more consolidation measures.

I turn to our second report, The Legislative Process: The Delegation of Powers. Delegated powers are, of course, an important and necessary part of the legislative process. When they are used appropriately, they provide the Government with the flexibility to fill in some of the blanks or update aspects of the policy detail without the need to go through the extensive and rigorous primary legislation process. The Delegated Powers and Regulatory Reform Committee does an outstanding job in policing such matters. If the Government heeded its advice more frequently, the quality of legislation would improve markedly. Regular readers of the Delegated Powers Committee’s reports, as well as our own, will know that the Government’s use of delegated powers is regularly found to be inappropriate. It is constitutionally unacceptable that the Government seek to create criminal offences as well as new public bodies by secondary legislation, to which only limited parliamentary scrutiny applies.

The Government’s response to our report suggested that such uses of delegated powers are,

“likely to be few and far between”.

We do not find this persuasive. Indeed, on Monday we published a report on the Rivers Authorities and Land Drainage Bill—a Private Member’s Bill supported by the Government—which contains a delegated power to create new public bodies in the form of river authorities. It is not clear why the Government acknowledge that these powers,

“must be approached with caution”, yet they continue to appear in Bills.

Similarly, the committee found that “skeleton Bills”—Bills comprising little more than delegated powers—“inhibit parliamentary scrutiny”. We concluded that it was,

“difficult to envisage any circumstances in which their use is acceptable”.

Perhaps the most egregious recent example of this is the Agriculture Bill. I quote from the report of the Delegated Powers Committee:

“Parliament will not be able to debate the merits of the new agriculture regime because the Bill does not contain even an outline of the substantive law that will replace the CAP after the United Kingdom leaves the EU. Most debate will centre on delegated powers because most of the Bill is about delegated powers. At this stage it cannot even be said that the devil is in the detail, because the Bill contains so little detail”.

The Government’s response on skeleton Bills was that the term was sometimes used to describe bills in which the overall policy framework was clearly set out, and states that,

“there have been and will continue to be sound reasons”, for the use of skeleton Bills in a limited number of cases. It is not clear what the sound reasons are. The response is one of assertion and not justification. I shall return to its inadequacies.

Henry VIII clauses were another area we consider,

“a departure from constitutional principle”, and we conclude:

“Widely drawn delegations of legislative authority cannot be justified solely by the need for speed and flexibility”.

Although, as the Government acknowledge,

“a full and clear explanation and justification”, is clearly helpful, Henry VIII powers should be sought much less frequently than has been the case in recent years.

This House has shown notable restraint towards the Government’s approach to delegated legislation. Indeed, the House has shown remarkable flexibility in accommodating several hundred EU exit statutory instruments. We pay tribute to the work of the Secondary Legislation Scrutiny Committee for undertaking that task on top of its other important work. However, there are limits. We call on the Government to be more responsive to issues raised about statutory instruments and to use the flexibility of the system to withdraw and re-lay amended instruments when parliamentary scrutiny has identified concerns. We suggest that if the Government do not use their delegated powers appropriately, the restraint shown by this House may become unsustainable.

I turn to the Government’s responses to the reports. The two responses were clearly written by different hands; one, on the delegation of powers, addressing each recommendation, and the other, on the legislative process, being more general and thematic. Both, though, have one thing in common: they seek to defend existing practice and concede nothing. The way in which they are written is not persuasive. Some of our proposals are matters for the House, not the Government, such as the recommendation for a legislative standards committee. I very much hope that this recommendation will be taken up by the Liaison Committee as part of its current review of committees, and likewise with the proposal for a post-legislative scrutiny committee.

On matters that are within the remit of the Government, I have a number of questions for my noble friend Lord Young of Cookham. What do the Government now do that they did not do before because of the committee’s reports? Following my earlier comments, can he confirm that the Government will maintain the practice of publishing Green and White Papers? What is the Government’s strategy for pre-legislative scrutiny: is it integral or an optional extra to the legislative process? Do the Government have plans to introduce any further consolidating measures, and in what circumstances does he think skeleton Bills are appropriate?

I conclude by putting on record our thanks to all those who gave evidence to us, our staff and our two legal advisers, Professor Mark Elliott and Professor Stephen Tierney. Professor Elliott is about to step down from his role to take on enhanced responsibilities in the law faculty at Cambridge, and I place on record the committee’s thanks to him for his outstanding contribution to the work of the committee. I beg to move.

Photo of Lord Beith Lord Beith Liberal Democrat 4:42, 12 June 2019

My Lords, it is a pleasure to follow the noble Lord, Lord Norton of Louth, and to pay tribute to his work on constitutional issues on the committee, in his professional career and in various other organisations that focus on them. I endorse his comments on the staff and advisers to the committee.

The two reports that we are debating today are linked, and not merely because they are two of a sequence of four studies by the Constitution Committee into the legislative process. They are linked by cause and effect. Excessive and inappropriate use of the delegation of powers undermines the quality of legislation, leading to legislation that is unclear, incoherent, inaccessible or badly scrutinised. Furthermore, the excessive use of regulations to fill in the gaps in legislation is often a consequence of a failure to prepare legislation properly. The policy has not been worked through and properly consulted on, so the Bill leaves gaps to be filled by regulations. This is particularly the case when new elements are added to a Bill in the course of its passage through Parliament. All new laws should have to pass the tests suggested to us by the Office of the Parliamentary Counsel: is it necessary, effective, clear, coherent and accessible? Many new laws do not, at least in part, pass those tests.

The legislative landscape is littered with Christmas trees, skeletons and signals. For the uninitiated, Christmas trees are Bills on which departments hang a diversity of provisions that they have not managed to get into the programme as individual Bills; skeleton Bills contain none of the detail and depend on delegated powers; and signal Bills may have no practical effect because their only purpose is as a declaration that the Government want to be seen to be doing something but cannot think of anything particularly useful to do.

The committee sets out remedies for these failings. First, legislation should have an evidence base which has been the subject of wide consultation and thorough scrutiny. Then the norm should be, as the noble Lord said, for Bills to appear first as draft Bills, scrutinised by committees of either or both Houses of Parliament. Issues identified can then be dealt with before the Bills acquire the level of political and government commitment, which leads to a defensive attitude and an unwillingness to amend. Parliamentary counsel should, as it has traditionally done, make clear where a legislative mechanism is unworkable, inappropriate or confusing in its legal effect. If it does so, within government it is the job of the Leader of the House of Commons and the law officers to challenge colleagues over such defects.

The Constitution Committee, as the noble Lord, Lord Norton, has pointed out, supports and reiterates the proposal for a legislative standards committee to test proposed legislation—not on the merits of its policies, but on whether new legislation is needed, whether its impact has been properly assessed and whether it creates coherent law. That process would sit alongside the work of the Constitution Committee and of the Delegated Powers and Regulatory Reform Committee in their examination of new Bills on the issues for which they are each responsible. The Constitution Committee also strongly commends accelerating the process of consolidating Bills. It is satisfying that, as we speak, the Grand Committee in the Moses Room is looking at the pre-consolidation legislation on sentencing, which accounts for the noble and learned Lord, Lord Judge, today demonstrating his ability to be and speak in two places almost at once.

If new Bills have been well prepared and have gone through the tests we recommend, they will be less likely to have the inappropriate recourse to delegated powers, which we have identified and criticised in our 16th report—the other report we are considering today. There will still be issues about delegated powers and the inadequate scrutiny which so often applies when they are exercised, particularly in the Commons. Some of us have experience of the brief and inconsequential Committee process which attends negative instruments in particular in the Commons.

We need also to reconsider how inappropriate or defective statutory instruments are dealt with in our own House. We were concerned that the question asked by departments and Ministers when considering whether to use secondary rather than primary legislation for important features of a Bill is not always an objective test of appropriateness, but a question of what Parliament will allow—what powers can be pushed through, perhaps on the back of general support for the policy objectives of the Bill.

Delegated powers are a necessary part of the legislative process, but the committee said:

“It is constitutionally objectionable for the Government to seek delegated powers simply because substantive policy decisions have not yet been taken”.

The DPRCC said that the Childcare Bill in Session 2015-16 contained,

“virtually nothing of substance beyond the vague ‘mission statement’ in Clause 1(1)”.

Our committee, like the DPRCC, has raised strong objections to the use of delegated powers to create criminal offences legislation or to set up public bodies. The Children and Social Work Bill presented to this House in the 2016-17 Session did both these things and was strongly criticised by us at the time. As the noble Lord, Lord Norton, referred to, we may be faced with a rivers authorities Bill which allows numerous public bodies to be created by delegated powers.

Henry VIII powers, by which statutory instruments can change primary legislation, are necessary for minor tidying—for example, to make sure that the law correctly cross-references legislation passed subsequent to the introduction of the Bill in question. However, their use should be strictly limited. If the Government continue to fail on this test, they will have my noble and learned friend Lord Judge to answer to.

When substantial issues come before Parliament in the form of statutory instruments, with very rare exceptions, they cannot be amended. If they are defective, or if they include provisions which are deeply controversial and might be rejected if presented separately, the House faces a take it-or-leave it decision on the instrument as a whole. Although it would be technically possible to allow for amendments, it would be a significant change. It would require different procedures and the committee is not recommending such a course.

The appropriate response in such circumstances is for the Government to withdraw the instrument and relay it in amended form or, in case of urgency, to bring forward an amending instrument at a later date. It does happen, but Governments are too reluctant to do it. Again, they are defensive: the instrument is their baby and they will not hear a word said against it, although I remember the late Patrick Mayhew, when he was Solicitor-General, announcing in a committee sitting that a Bill he was taking through was not capable of fulfilling its intended purposes and could not be made so, so would not be further proceeded with. That kind of refreshing honesty is something we could do with a little more of. The natural instinct of government, I fear, is not to admit it has got it wrong.

This House has a device to identify and object to failings in statutory instruments—regret Motions—but these have no direct effect; they are not fatal. They may be appropriate, but an expression of opinion is all that your Lordships intend. They are not adequate to prevent the fundamentally inappropriate use of a statutory instrument, which brings me to the case of the tax credits regulations of 2015, which had far-reaching effects. This House passed a delaying Motion. The Government had a blue fit and called in the noble Lord, Lord Strathclyde, to act as a sort of one-man fire brigade, but then abandoned the proposed regulations—an appropriate course of action in the end. In paragraph 109 of our report we set out why we think it is wrong to frame discussions on the question of what happened in that instance as if it were about the balance of power between the two Houses of Parliament, the Lords and the Commons. It is not; it is about the balance of power between Parliament and the Executive, about whether and how the Executive should be held to account.

As we have explained, the Government have the means at their disposal to confine delegated powers to the purposes for which they are legitimately intended and to correct faults in them identified by Parliament. If they fail to do so, they should recognise that an occasional defeat is neither momentous nor necessarily fatal to their policy objective. This House exercises great restraint in these matters, but the committee makes it clear in its unanimous conclusions that:

“If the Government’s current approach … persists … the established constitutional restraint shown by the House of Lords towards secondary legislation may not be sustained”.

Those words were not chosen lightly.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative 4:52, 12 June 2019

My Lords, I declare my interests as set out in the register, in particular as a partner in the global commercial law firm DAC Beachcroft and of course as a member of the Constitution Committee. I very much welcome this debate. It is hard to believe that more than 18 months have passed since the publication of the fourth report, The Legislative Process: Preparing Legislation for Parliament, and more than six months since the 16th, The Legislative Process: The Delegation of Powers. I am proud to be associated with both excellent reports, but I hope the House will forgive me if my remarks focus on the latter and on the thorny question of the proliferation of secondary legislation, which has just been dealt with so effectively by my colleague, the noble Lord, Lord Beith, whether it matters and what to do about it if it does.

I pay tribute to my fellow committee members and to the excellent team, led by our clerk, who did such sterling work gathering evidence and drafting the report. I also pay tribute to the work of what I describe as our sister committee, the Delegated Powers and Regulatory Reform Committee, which frequently cuts off inappropriate and excessive proposals for delegation of powers at the pass, saving us all a lot of time, energy and aggravation later in the process. My noble friend Lord Blencathra, who I am delighted to see is to participate in this debate, together with his colleagues, has made that committee a vital part of our system of governance and proper accountability.

Of course, our 16th report makes some detailed recommendations that are well worth consideration, but it also touches on and draws on wider, deeper themes—vital themes for us all. Paramount among these is the great challenge we all face, and the responsibility we all share, of rebuilding public confidence in our institutions. Noble Lords will be relieved to hear that I have no intention of producing an extended exposition on the interminable matter of Brexit. However, I am relieved that the House of Commons has just rejected by 309 to 298—a majority of 11 votes—what I thought was an irresponsible Motion to try to rewrite the Standing Orders. I am sure it was right to reject that, but all of us in public life need to do everything in our power not only to understand the feelings that induced 17 million people to vote for Brexit in 2016 but now to address those profound concerns earnestly, comprehensively and with genuinely open minds.

For some time now, our nation has been suffering a serious and deepening loss of confidence in our social and political institutions. The causes of that are certainly economic as well as political—arguably, primarily economic—but the time has surely come for us to go back to first principles and examine why we are all here in this place and how we might best fulfil our responsibilities to the British people.

Some might grandly dub this a new constitutional settlement. I see it more as a reassertion of time-honoured and tested values and processes. Even before the great deluge unleashed by Brexit, the volume of legislation coming to this House and the other place had become daunting—even overwhelming and, dare I say it, excessive. As a consequence, the process of serious and effective scrutiny has become grievously overloaded.

I was first elected as a Member of Parliament in March 1976. I served in that office for 21 years, and the duration of my service in this House has just overtaken that. Soon after coming into Westminster I found myself appointed a party spokesman, on the Front Bench straightaway, and after the Conservatives won the 1979 election I spent 16 years without a break in various roles on the government payroll, for which I thank the public very much indeed. I recount this not in praise of myself, but to tease out an argument about the role and responsibility of parliamentarians, especially in a system such as ours where members of the Executive are also members of the legislature.

Through all those years, I hope I never lost sight of the primary role of the legislature as distinct from the Executive, of which I was also part. We are here principally to hold the Executive to account. Those dogged maverick Members whose relationship to Ministers is rather like that of a dog to a bone are heroes of our system, relentlessly tiresome to those whom they pursue but vital to the operation of our democratic system. I am glad to see one or two in their places in this House today.

Ultimately, both reports are about ensuring that we have a system of effective accountability that is both methodical and, when the occasion demands, operates in the buccaneering spirit of those great free-spirited parliamentarians. Yes, there is far too much legislation and a concomitant danger of overload, but there is no excuse for the Executive seeking to push significant measures—including some, as my noble friend Lord Norton pointed out, that create new criminal offences or yet more public bodies, as my colleague the noble Lord, Lord Beith, has just pointed out—into the parallel, all too convenient and faster track of secondary legislation.

Whether or not Brexit happens, and regardless of the shape it ultimately takes, we must realise that our parliamentary system has largely lost its former reputation, domestically and internationally, as the very model of how a free nation should govern itself. We now have to rebuild our systems of accountability, our will to challenge in the public and national interest and, thereby, our collective reputation.

As part of that process of restoration, the clear and discernible upward trend in the accretion of delegated powers must stop now and be clearly reversed. Otherwise, our task of holding the Executive to account will simply become impossible. Of course, it is only human that we worry about these matters much more when we are in opposition. When it is our own noble and right honourable friends who take the decisions, perhaps we have tended to become too blasé.

That makes it all the more important that we should take this question as far as possible out of the normal jousting match of partisan politics. I well know from experience that precedents matter and they carry across from one Administration to the next, regardless of party. That is why we must all, regardless of affiliation, take an honest and open look at how and why these so-called Henry VIII powers are creeping back into our lives on a worrying scale.

As our report reminds us, unlike our system for primary legislation, that for statutory instruments contains no mechanism at all for making amendments. We can, of course, reject them, but only Ministers can revise them. The reality is that, for a number of reasons, we hardly ever do reject them. According to the report, since the last war, the two Houses combined have done so in fewer than 0.01% of cases—just 16 out of 169,000. In practice, except where an eagle-eyed Member happens to spot something offensive or deleterious and divides the House, the passage of SIs is little more than a weary and routine process of rubber-stamping.

I was particularly disappointed with paragraph 7 of the Government’s response to our report on delegated powers, in which the Leader of the House of Commons said:

“It is not always possible to set a clear dividing line as to what amounts to a matter of policy and what constitutes ‘filling in the detail’”.

My answer is: of course it is possible—and vital, too. Why on earth cannot Governments see that, whatever their complexion? As the Secondary Legislation Scrutiny Committee of this House—I pay tribute to my noble friend Lord Trefgarne and his colleagues who are setting the gold standard in producing reports of this nature—warned in paragraph 26 of the 51st report of Session 2017-19,

“significant policy developments should not be merged with a mass of minor adjustments to the extent that they risk being overlooked”.

Quite right.

In conclusion, I am well aware that replacing secondary legislation with primary legislation will necessitate more work, both here on the Floor of the House and in Committee. However, in some instances I believe that it is simply vital to the good function of our system of accountability—our very democracy—that this happens. We must step up and make it happen. As we state:

This House has exercised a remarkable degree of constitutional restraint in this matter”.

I am sure it is also correct to warn that this restraint cannot be taken for granted indefinitely.

I warmly commend both reports to the House. I hope that in their small way they contribute to the restoration of the good name of our great Parliament.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative 5:04, 12 June 2019

My Lords, it is with the greatest pleasure that I follow my noble friend in this debate. I agree with all that he said, I think, without exception. I am also grateful for the reports which are the subject of this debate and for the Constitution Committee which, with its staff and advisers, produces such excellent reports. I join my noble friend in thanking the members of the committee who have helped to keep this show on the road, although that has become more difficult with the amount of work that has been pushed into their trays.

It is possibly right for an elderly gentleman to look back a bit, and I am inclined to do that this afternoon in relation to two Bills that I had the honour of presenting to this House a long time ago. The first of these was the Children Bill, which became the Children Act 1989. The first report that we are considering comments on the necessity for policy to be clear, because you cannot draft a clear statement of something that is not originally clear. If you do not know what the policy is, it is mighty difficult to express it clearly; you have to find that out first. That is important.

The first Bill, which became the Children Act 1989, came out of a detailed consideration by the Law Commission. I believe that the Law Commission, under the chairmanship of the late Lord Scarman, developed the idea of consultation as a way of developing the law. He and his early colleagues—I was glad to have a chance to chair with him later on, because I was a Law Commissioner in Scotland for some little time—made the point that, as members of an independent body, it was difficult for them to frame policy, because as soon as they did so they became less than independent. Therefore, they have to try to analyse what people feel is required, and proper consultation in detail, and with time, is an important part of that.

The Law Commission had done extremely good work in collating the various views on a very complicated system of child welfare in this country, and put it into an extremely clear report. It was my particular privilege at the time that the commissioner was none other than the present President of the Supreme Court, so my acquaintance with her goes back quite a long time. I believe that the resulting Bill was extremely good, but it was good not because I presented it but because it was well prepared. I very much commend that.

It is not always open to get the Law Commission to do something. Fortunately, it has done something that is the subject of debate in the Moses Room this afternoon. I am glad to see that my noble and learned colleague, Lord Judge, has been able to change the rules so that he can be in both places at once, which is part of his skill that I am glad to admire.

The Children Bill went through with a lot of detailed consideration. I was fortunate, in that not only did I have the Law Commission’s support but an extremely good, very experienced social worker to help me with proposals for dealing with delicate matters. One of the most delicate in the whole Bill was the threshold for interruption by the state in family relationships. That is an extremely important and difficult area. Ultimately, together with both Houses of Parliament, a formulation was made.

As far as I know, that formulation has stood the test of time. Reference has been made to various Bills that have come along in the children and social care business since. I venture to think that the main structure of the 1989 Bill has never been improved upon, and was extremely effective.

There is quite a lot discussion in the report about post-legislative scrutiny. One of the things we did, which I think was right, was not to bring the 1989 Act into effect immediately, but to help the people who were going to put it into effect to understand what was wanted and to assimilate the principles, which were very basic, structured and well expressed. They were given time to do that and as a result, when the Act came into force two years later, it worked pretty well. One of the doubts I have—doubts accumulate with the passage of time—is the amount of time that some of these difficult cases took in the family court. Delays became higher than I would have liked. That was partly, at least, due to the amount of expert evidence that was taken in children’s cases. I am left in little doubt as to the value of such evidence in all such cases. The time that was taken to set up the Act was very good; it is not customary now to have that kind of interval.

The other Bill I want to mention is connected to embryology and was passed in 1990. We had a brilliant committee report under the chairmanship of the late Lady Warnock. It dealt with a difficult subject involving lot of what you might call theological difficulty, as well as difficulty arising from the science that lay behind the particular problems. The Warnock committee report was a brilliant account of what should be done. A shadow authority was set up under the chairmanship of the late Lady Donaldson, who was the first female Lord Mayor of London. That gave us a good deal of help in formulating the basic structure of the authority, which to this day has stood with very little change in the way it is run. That Bill shows that good preparation is the answer to getting a good Bill. Very little change has taken place in that area of the law either, except to try to keep up with the rapid changes taking place in the basic science. There is a discussion going on just now about other aspects of family life that were dealt with in the Bill but require reconsideration in the light of developments.

These two Bills show that the precise way in which preparation is done is not quite so important; it depends on what is available at the time, who is available to do it, and so on. But it does demonstrate that if you want to get a good Bill, you must know what you want in the way of policy before you start.

The Constitution Committee has suggested a standards committee for legislation. I wonder whether that can be done in the abstract. I would prefer to make it a binding obligation, so far as that is possible, on the committee of the Government who authorise a Bill to be placed before Parliament to have regard to the standards required to make the Bill reasonably capable of being dealt with under the available parliamentary procedure.

The other point I want to make in that connection concerns consolidation. I agree with what was said earlier about some of the most important areas of our law; I think particularly of immigration law, which requires very sensitive handling, and yet the law is complicated. Recently, I had occasion to try to understand what it says, on behalf of a relative. I am not without a little experience in looking at these matters, but it was extremely difficult to find out exactly what the relevant provision was in connection with that problem. Consolidation strikes me as a vitally important process in keeping the statute book reasonably accessible.

When I was a Law Lord, I served for a time on the consolidation committee. I have to say that the length of time it takes for a consolidation Bill to go through Parliament is next to nothing. The idea that there is no parliamentary time to deal with it is less than adequately borne out in practice. However, one of the difficulties is that the consolidation committee is a Joint Committee and for some reason, which your Lordships may be able to guess, it is quite hard to persuade Members of the other place who are members of the committee to come along timeously. We spent a lot of time waiting—I hope patiently—for our colleagues to arrive so that we had a quorum and could start. Here, I want to pay particular tribute to the late Lord Brightman, who was the committee chairman when I was first a Law Lord. That responsibility ultimately passed to me, but I was delivered from it by becoming the Lord Chancellor. The detailed consideration that Lord Brightman gave to consolidation matters was extraordinary. He was able to show exactly what was required and where, and he had all of that done before the committee met, and of course he was able to explain it to us. We were all so confident in his work that the time taken was really very short.

The last thing I want to talk about relates to the second report. There has been a terrific, absolutely extraordinary growth in what is called guidance. Whose guidance is it, I ask? My late good friend, a Permanent Secretary at the Scotland Office, used to say that guidance was usually couched in the mysterious passive, which you can see if you look at it. The “mysterious passive” is a favourite expression. It is not “my” opinion or “my” guidance; it is written as, “it is thought that”, “it is required that” or “it is considered that”. The amount of that has grown beyond all recognition and it is at least as fatal to good lawmaking as any kind of Henry VIII clause. A recent, fairly good example is lessons for schoolchildren. I make no comment on the substance, but the actual nature of the guidance is quite remarkable.

I thank the Constitution Committee for these reports. The subject matter is of fundamental interest and I am glad to have had the opportunity to take part in the debate.

Photo of Lord Trefgarne Lord Trefgarne Chair, Secondary Legislation Scrutiny Committee, Chair, SLSC Sub-Committee A, Chair, Secondary Legislation Scrutiny Committee, Chair, SLSC Sub-Committee A 5:19, 12 June 2019

My Lords, I am delighted to contribute to this debate, particularly in relation to the second of these impressive reports, the Constitution Committee’s report on the delegation of powers. As chairman of your Lordships’ Secondary Legislation Scrutiny Committee—a post I have had the honour to occupy since 2015—secondary legislation obviously holds a particular interest for me. As your Lordships can no doubt imagine, over recent months it has been the almost exclusive diet of my reading and has occupied much of my time.

Yesterday my committee published its second interim report, describing our work from April 2018 to April 2019. While it is too early for the Minister to comment on our findings, I hope the report has been of interest to your Lordships and has helped to inform today’s debate.

It will come as no surprise when I say that the past year has been a particularly demanding one for the SLSC. Over 1,000 instruments were laid during the period, compared with 659 in the previous 12 months. Nearly 690 were laid between October 2018 and March 2019, and 36% of the total during the first quarter of 2019—an unusually heavy workload. But this was anticipated, and arrangements were put in place to ensure that our capacity could meet the demand. In July 2018, as a result of the expected 800 or so Brexit instruments—a figure later revised downwards—and the extension of our remit to include the withdrawal Act sifting function, my committee was given the power to appoint sub-committees and to co-opt new members. That power was exercised in October 2018 when we formed two sub-committees. The noble Lord, Lord Cunningham of Felling, chaired one and I the other. We also co-opted an additional 11 members to the sub-committees and increased our staff complement. I am pleased to take this opportunity to thank the co-opted members for their invaluable contribution to the scrutiny work of the committee. We have now resumed sitting as one committee, albeit ready to return to two committees should the need arise.

In its report, published in November 2018, the Constitution Committee noted that the sifting procedure was “in its infancy” and that it was then,

“too early to assess its efficacy”.

To some extent that remains the case. However, we are beginning to take stock of how well it is working. I am sure that others, in and out of Parliament, will do the same. Meanwhile, it is notable that of the 228 siftable instruments—what we call proposed negative instruments —laid up to April 2019, the SLSC recommended that 41, some 18%, should be upgraded from the negative to the affirmative procedure. I am pleased to report to your Lordships that the Government accepted all our recommendations without exception.

Brexit has dominated our work, but it has also dominated the work of Parliament more generally. However, as the Constitution Committee’s report and my committee’s second interim report show, a number of issues concerning the use of secondary legislation are of more general significance. For example, the Constitution Committee comments on the nature of guidance published alongside legislation—my noble and learned friend Lord Mackay has just referred to this—deprecating its use to assist the interpretation of legislation or to fill what it calls “policy lacunae”. In our annual report at the end of the 2016-17 Session, we echoed this concern when we called for a clear distinction between guidance and secondary legislation, and for legislation to be sufficiently clear,

“to avoid the need for interpretative guidance”.

The Constitution Committee is also critical of skeleton Bills—also referred to by my noble and learned friend—a matter on which my committee commented in our response to the Strathclyde review in 2015 when we said we supported,

“those who caution against the use of skeleton bills and skeleton provision in bills”.

But the most fundamental issue in relation to the delegation of legislative power is the boundary between primary and secondary legislation. It is, as was amply demonstrated in the debates on the tax credits regulations and the subsequent Strathclyde review, at the very heart of the relationship between Parliament and the Government—between the legislature and the Executive.

The Constitution Committee expresses concern that the balance of power is tipping away from Parliament. It refers to how the boundary is “not always respected”, and that statutory instruments may be used,

“to give effect to significant policy decisions”.

Over the last year, my committee and the sub-committees have dealt with a number of instruments which may be classified as giving effect to significant policy decisions. They included, to name just a few, regulations about the teaching of relationships, sex and health education in schools, about which we received over 430 submissions from members of the public; universal credit regulations which involved the migration of about 3 million people on long-term benefits to universal credit; regulations changing the maximum stake for fixed-odds betting terminals from £100 to £2; and regulations to set up a stand-alone UK regulatory regime, REACH UK as it was called, for the regulation and control of chemicals. Most recently, following an evidence session with the Minister and submissions from interested organisations, we reported on regulations relating to the Government’s decision to cease operating a statutory adoption register.

Finally, I pay special tribute to the staff who have provided unfailing support to my committee and sub-committees and, as a result, a considerable benefit to your Lordships, despite the burden of an exceptional workload over the months. We are all truly grateful.

Photo of Lord Blencathra Lord Blencathra Chair, Delegated Powers and Regulatory Reform Committee, Chair, Delegated Powers and Regulatory Reform Committee 5:26, 12 June 2019

My Lords, I have the privilege of being the chairman of the Delegated Powers and Regulatory Reform Committee, and in this capacity, I will focus my remarks on the second of the Constitution Committee’s two excellent reports, on the delegation of powers. It is an impressive piece of work, and not just because it praises my committee on numerous occasions.

I thank my noble friend Lord Norton of Louth for his excellent presentation of the reports today, and the chairman of the Constitution Committee, the noble Baroness, Lady Taylor of Bolton, and all the members of that committee, not only for their generous recognition of the work of the Delegated Powers Committee in their report and elsewhere but for the collaborative working relationship which the two committees, and their officials, have developed over the years, to the benefit of the House and the greater good of rigorous scrutiny of legislation.

The Delegated Powers Committee’s role is to examine the appropriateness of every delegation in a Bill, and the level of scrutiny applied to it, while the Constitution Committee adopts a constitutional perspective. There is a complementarity in our relationship which serves the House well. I thank my noble friend Lord Hunt of Wirral for his exceptionally kind remarks about my committee and me, but I assure him that the Delegated Powers Committee was doing a fantastic job long before I became chairman, and it will continue to do a fantastic job long after I have gone. The reason for that is that we have some superb colleagues serving on it, one of whom will be speaking in the wind-up tonight, and we are served by an excellent clerk and four superb counsel with more than 100 years’ experience as barristers between them. They all know what they are talking about, and I would not survive without their expertise.

We share the view of the Constitution Committee that the proper balance between primary and secondary legislation is “not always respected”. It is because of this that the Delegated Powers Committee is needed, and more often than not, our reports include important recommendations on the delegation of powers or the level of scrutiny applied to them. Policing that boundary is our raison d’être and, as we said in our report on the Strathclyde review, events giving rise to the review,

“provided a stark reminder of the importance of our work”.

Since Strathclyde we have had the referendum and the decision to leave the EU. Brexit-related Bills have been introduced which have included the delegation of powers to Ministers that have been nothing short of breath-taking in some instances.

On the withdrawal Bill, the Delegated Powers Committee described,

“the distribution of power between Parliament and Government”, as being at the very heart of the Bill—a distribution weighted in favour of the Government by significant Henry VIII powers ranging over, as we said, “an unprecedented number” of policy areas. I think we all accept that some Henry VIII powers were necessary in the European Union (Withdrawal) Bill, but where they were needed there should have been explicit sunset clauses to limit their duration. I am in no doubt now that government departments, including Ministers, civil servants in charge of policy and parliamentary draftsmen, saw the incredible potential advantages of Henry VIII clauses in that they could change any law they liked without having to bring primary legislation before Parliament. Thus we now get Henry VIII clauses routinely tacked on to Bills where they are not necessary.

Departments are also drafting regulations, making clauses of such width that again Ministers would be able to change whole rafts of law with little say by Parliament and to make laws which went much wider than the stated purpose of the primary legislation. Let us take the Healthcare (International Arrangements) Bill. My committee said that,

“the scope of the regulations could hardly be wider”.

The Bill, as stated by the Government, was supposed to make reciprocal arrangements as we left the EU to take care of Brits in Europe and Europeans in this country—a simple, sensible provision. However, it went much further than EU and UK reciprocal arrangements. My committee pointed out in our report that there was no limit to the amount of the payments which could be made, no limit to who could be funded worldwide and no limit to the types of healthcare being funded. The regulations could confer functions, powers and duties, including discretions, on anyone worldwide; and the regulations could amend or repeal any Act of Parliament ever passed. That is far more extensive than the Government’s stated purpose.

Then we had the Haulage Permits and Trailer Registration Bill, which we said was,

“wholly skeletal, more of a mission statement than legislation”.

We said we were “dismayed” at the Government’s approach to delegated powers in the Agriculture Bill, which we described as,

“a major transfer of powers from the EU to Ministers”.

However, to be fair, the Fisheries Bill, which looked like it had been written by a completely different department or bunch of civil servants, we commended as one of the finest Bills we had come across. So sometimes the Government can get it absolutely right and I am pleased to commend them for that. In referring to a provision in the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, we commented that Parliament was,

“being asked to scrutinise a clause so lacking in any substance whatsoever that it cannot even be described as a skeleton”.

Then, in addition to inappropriate secondary legislation, we get tertiary legislation, and raising taxes by tertiary legislation, and we had that wonderfully unique lawmaking power in Schedule 5 to the European Union (Withdrawal) Bill, a power last used in 1539, making law by proclamation—or, in the words of the schedule, by “direction”. Paragraph 2 of Schedule 5 permitted a Minister of the Crown to change the law by giving a direction with no parliamentary procedure applying to it whatever. We stated that a direction is what Henry VIII would have called a proclamation— there is a no real difference—and that the Statute of Proclamations 1539, which gave proclamations the force of statute law and later gave rise to the term “Henry VIII power”, was repealed in 1547 after the King’s death. We found it extraordinary that the Government should try to bring it back in this small area of a Bill 470 years later.

The exigencies of Brexit may have led Parliament into accepting some extraordinary delegations but we need to maintain our vigilance on policing the boundary between primary and secondary legislation. It is essential that we apply the same high standards of scrutiny to all Bills introduced into Parliament. The Delegated Powers Committee operates under a fundamental principle that powers are judged not on how the Government say they will use them at the moment but on what the law allows them to do at any future time—what any future Government could do with the powers created.

There are Bills other than Brexit Bills where the appropriateness of the delegation of powers is called into question. One of our most recent reports, which has already been referred to today, was on the Rivers Authorities and Land Drainage Bill, a so-called Private Member’s Bill of immense complexity but supported by the Government. That Bill caused our committee serious concerns for a number of reasons, not least our view that the Bill was, in effect, in our words, a “ploy” to avoid having to pass a hybrid Bill.

The Government even admitted in the Commons that the Bill applied only to Somerset but that, if they made it a Somerset-only Bill, it would be a hybrid Bill and would take, in the Minister’s words, three to 10 years to get through Parliament—a nonsensical claim in itself. They came up with this ruse to ostensibly make the Bill one which applied nationally to get around the hybrid Bill procedure. I consider that to be a gross abuse of our parliamentary procedures. It deprives the people of Somerset the chance to have a proper say, which they would normally get with a hybrid Bill. Even if 99% of the people of Somerset think that the substance of the Bill is the best thing since sliced bread, the other—hypothetical—1% should still have the right to have their case considered. We welcome the Constitution Committee’s unreserved support for this criticism. I hope the whole House will support me in moving amendments so that this Bill is converted back to a proper hybrid Bill, which it is in reality.

I want to conclude on the point made by the Constitution Committee in its first conclusion in its summary of conclusions and recommendations, where it says:

“It is a responsibility for all, including Parliamentary Counsel, to uphold constitutional standards in relation to delegated powers”.

On reflection, that is an exceptionally good point, which needs emphasis. In my opinion, criminal defence lawyers will lie, cheat and connive to get their client off. That is what they are paid to do. We expect different and much higher standards of government policymakers and parliamentary draftsmen.

Who thought of the ploy of dehybridising the Somerset land drainage Bill? There cannot be more than dozen MPs in the other place who know about hybrid Bills—they are the unlucky ones who have been forced to serve on the hybrid Bill committee. I am therefore certain that Ministers did not come up with this scam, although they must take ultimate responsibility. It had to be lawyers who thought of this ploy to get around parliamentary procedures.

Of course, Ministers will want to build fairly wide powers into a primary Bill for secondary legislation, but did they dream up this power of making law by declaration or taking powers from the EU healthcare Bill that would have permitted the Government to pay for a Texan having a hip replacement in Dallas? I think not. I am giving notice to departmental policymakers and parliamentary draftsmen, as well as to Ministers, that we may summon them before our committee not simply to justify the extraordinary powers being sought but to find out who dreamed up these attempts to get around our procedures in the first place. I think it is a very valid question.

I was about to conclude there, but my noble and learned friend Lord Mackay of Clashfern has prompted me to tell a little story from about 1996, when I was a Minister of State in the Home Office and we were signing off yet another massive criminal justice Bill. I was invited to go to LEG committee and was briefed by civil servants. It was agreed around all the departments: “Minister, there’s nothing to worry about. Everyone’s content. It’s a routine matter”. I had in my beautiful red folder a one-page note to that effect and a draft copy of the Bill.

I got to LEG committee and the room said, “It’s all straightforward. It’s all agreed. Nothing to worry about. We’ll introduce the Bill tomorrow.” The then Scottish Secretary—my noble friend Lord Forsyth of Drumlean —piped up to say, “Could the Minister of State please answer this point? The age of criminal consent is different in Scotland. In Clause 56(5), could he explain why this is the case?”. I pretended to flick through my notes but knew I had nothing on it. I had to say, “Well, I think it is probably not a material point. It’s probably some misunderstanding”.

At that point, the then Lord Chancellor—my noble and learned friend Lord Mackay of Clashfern—piped up to say, “Well, it is a material point. The Bill could be fatally flawed. The Minister of State must be able to answer this point”, which the Minister of State could not. The then Lord Privy Seal, the late Tony Newton MP—the late Lord Newton—had a cigarette in both hands by this time, saying, “Oh my God, this is terrible. The Bill is fatally flawed. We cannot lay it tomorrow. The Minister must go back to the Home Office”. I was sent with my tail between my legs because the Bill was apparently not properly prepared. Within 30 minutes of getting back to the Home Office, after some strong words, it was all cleared by the department; it was a misunderstanding. But the point of this little story is to reinforce the point made by my noble and learned friend Lord Mackay of Clashfern that Bill—and ministerial—preparation is everything.

Whether it is Brexit legislation or no, vigilance in respecting the critical boundary between primary and secondary legislation must be at the forefront of this House’s concerns. The Delegated Powers and Regulatory Reform Committee has a vital role to play in that and we will be undaunted in discharging our responsibilities.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative 5:40, 12 June 2019

My Lords, in view of that last speech, I should first declare an interest: I am a resident of Somerset. Judging from what my noble friend said, I am probably in the 99% but there it is.

I congratulate the chair and members of the committee on these valuable reports. They are of interest to me because, like others here, I have been a legislator for 45 years. As a matter of fact, I was involved in the preparation and passage of legislation even before I became an MP in 1974. I am a chartered accountant and a considerable part of my earlier experience was with finance Bills and taxation. One of the advantages of being in the House of Lords is that I am no longer required to take part in Bills on taxation as long as I am here.

The report on delegated legislation seems the latest episode of that long-running saga, “The struggle for power between Parliament and the Crown and its Government”. Having played on both sides, I was interested to read the latest twists in the game, but the scoreboard on page 25 of the report should worry us all. So indeed should the extra information in the report of my noble friend Lord Trefgarne’s excellent Secondary Legislation Scrutiny Committee, which was published yesterday and gives a lot more information.

On the scope of statutory instruments, the Constitution Committee asserts:

“Broad or vague powers, or those sought for the convenience of flexibility for the Government, are inappropriate”.

I agree with that, but the Government’s response—provided by the then Leader of the House of Commons —in paragraph 13 was:

“The Government does not agree that broad powers are, by definition, inappropriate”.

That sweeping statement is modulated a little by some of the following sentences but it still seemed to me, to say the least, cavalier, not only in the sense of taking a swashbuckling cavalry attitude towards rules, but in the more direct 17th century sense of the Crown or Executive attempting to evade the scrutiny of a Round- head Parliament.

I was also interested in the other report that we are debating on the preparation of legislation, particularly the passages about drafting legislation. My noble and learned friend Lord Mackay of Clashfern is right that it is most important that the policy is clear before the parliamentary draftsmen can do their work. I have a high respect for the skills of parliamentary draftsmen, although I have to say that while I was a Minister, at the Treasury and elsewhere, I found them pretty elusive. Sometimes, for example, I thought that legislation I was being asked to take through Parliament could be worded in a plainer English. But my dealings with the parliamentary draftsmen concerned were usually indirect, being filtered through the departmental solicitors and so on, and usually unavailing. I gather that they are more open these days, as Sir Richard Mottram indicates in his quote in paragraph 158.

I think it is true, as the committee suggests, that legislation is sometimes more clearly worded now than it was. Sir Ernest Gowers did not write entirely in vain in 1948. His great work is apparently still in print and I think it should be on every civil servant’s desk.

The Select Committee is right to single out taxation legislation as one area that is not clear. Indeed, it is appallingly complex in places. Some might think that this benefits accountants and tax lawyers, and of course, people from both categories have been the reason for extra complexities being introduced in the cause of anti-avoidance. Both the Institute of Chartered Accountants in England and Wales, to which I still belong, and the Chartered Institute of Taxation complained in their evidence to the Select Committee about the lack of clarity and inconsistent definitions. The problem is recognised by government; the existence of the Office of Tax Simplification demonstrates that. I wish its new chairman, Kathryn Cearns, and all involved every success.

I note in passing that one of the candidates for leadership of my party wants to replace VAT with a so-called simpler sales tax. As it happens, I was in at the birth of British VAT and it was then regarded as a huge simplification of and improvement on purchase tax, the sales tax collected at the wholesale stage. Purchase tax lost favour, to put it mildly, because of the inherent definitional problems inevitably involved in practice when you came to write it into law and vary it over the years. VAT remains an excellent, ingenious, clear concept and its replacement would not lead to simplification for long, if at all, and meanwhile there would be huge disruption. I mention this because it is a special example of the problems of proposed legislation being written into manifestos. This is discussed in the committee’s report in respect of changes in government after general elections, but it has some relevance this week too.

Clearly, like the committee, we all welcome consolidation in principle, but recognise that not enough of it is done in practice, notwithstanding the Bill in Grand Committee this afternoon. My noble and learned friend Lord Mackay of Clashfern spoke much more expertly and eloquently than I can, and I agree with him about this. I was interested in the reference to “rolling consolidation”—namely, making use of the valuable website I find it extremely useful when considering legislation. I was delighted to see the First Parliamentary Counsel, Elizabeth Gardiner, explaining on page 41 of the report that her office is trying to draft new legislation which alters existing legislation through clauses that could replace the existing legislation—in her words, “consolidating as we go”.

An example may explain the concept a little more clearly. A change in the law may be proposed by an amendment saying something such as, “except that subsection (5)(b) will not apply in the following circumstances”. Is it not better to have an amendment that proposes to leave out subsection (5)(b), or whatever it is, and insert a new subsection altogether, incorporating the changes required? That technique leaves the legislation in a cleaner position, and a consolidated one, to a degree. Footnotes on the website can direct readers to the old version in case that is required. There will not always be a choice between the two ways to frame a change but, where there is, the First Parliamentary Counsel is quite right to prefer it.

The subject of these reports will for ever be with us, and, for that matter, with our successors, but the Constitution Committee has made a most useful contribution to the current debate, and I commend it.

Photo of Lord Cormack Lord Cormack Conservative 5:50, 12 June 2019

My Lords, it is a great pleasure to follow my noble friend Lord Cope of Berkeley. I was fascinated to hear his confession and that of my noble friend Lord Blencathra—that wonderful account of being present when a Bill he was due to present was forensically destroyed in front of him. I am particularly glad to be taking part in a debate opened by my noble friend Lord Norton of Louth, to whom the House, and indeed Parliament, owes a very great deal, for the clarity of his expositions and his extremely sensible approach to legislation.

Next week, on 19 June, I shall enter my 50th year as a parliamentarian. I have been here a very long time, in a career unblemished by ministerial office, so I am taking a special look at the root cause of our having to debate these things, which of course lies in our constitution. My noble friend Lord Hunt of Wirral referred to it in his excellent and admirable speech: the separation of powers. Unlike our great democratic partner, the United States, the Executive here are always drawn from the legislature. This has led to many bouts of schizophrenia over the years. I have noticed how the most forceful of Ministers become the best of poachers when they lose office or find themselves in opposition. I could give many examples but will refrain from doing so because I do not want to lose any more friends.

Fundamental to today’s debate are the conclusions in the two admirable reports before us. My noble friend Lord Norton made two particularly interesting comments when he gently but firmly criticised the general quality of legislation. It is frequently, to use the famous and often-used words of the noble Lord, Lord Reid of Cardowan, “not fit for purpose”. My noble friend also very gently but firmly demolished the replies by the then Leader of the House on behalf of the Government when he said something that really struck a chord with me: they were assertions, not justifications. That is precisely what they are. Sometimes we forget—certainly Governments forget—that Parliament does not exist for the convenience of the Government. That is a fundamental proposition that we should all recite every night: Parliament does not exist for the convenience of government. It is not an arm of government; it is not a servant of government. Parliament is not doing its job adequately unless it is constantly challenging the Government and holding them to account. That may be uncomfortable, but you are not attacking the man or the woman, you are attacking the measure or the proposal—and we ought to be much more rigorous in doing both those things. Delegated powers are not there to enable the Government to circumvent Parliament.

I am delighted that we will hear later from the noble and learned Lord, Lord Judge, who has done perhaps more than anyone in this Parliament to draw our attention constantly to this. He talked in one debate about his grandchildren saying that he “banged on”, but he has banged on brilliantly about delegated legislation, about Henry VIII powers and about Governments having frequently treated Parliament with disdain—and, frankly, never more so than during the agonising years since 23 June 2016. When we have a new Prime Minister and a new Government, I hope there will be a re-evaluation of priorities, a recognition that Parliament is not here to serve a Government but that a Government are here to serve Parliament. Parliament collectively represents the people, and the Government are constantly answerable to those who are in Parliament as the representatives of the people.

I was privileged to have the noble Lord, Lord Beith as a colleague in the other place for many years, after he won that spectacular by-election in Berwick-upon-Tweed, way back in the early 1970s. He held his seat because he was a very good parliamentarian. In his very interesting and rather witty speech, he referred to those catchphrases that we use—the skeleton Bills, the Christmas tree Bills and signal Bills. It is the duty of a Government to bring forward legislation that has been properly thought out and properly drafted. My noble friend Lord Cope of Berkeley referred to the parliamentary draftsmen. As a very young Member of Parliament, I remember being told by a very sage Member, sadly now no longer with us, that a parliamentary draftsman appears to need an “MO degree”. When I asked what that was, he said, “Master of obfuscation”.

We need to rebalance the Executive and Parliament, and to have a Government who will bring forward legislation that is always subject—as our committees have recommended in the past—to pre-legislative scrutiny and, after the passage of a year or two, to post-legislative scrutiny. Has what has been enacted been properly enforced and has it achieved what those who brought the legislation before Parliament wanted?

I shall say two other things. We have to flex our muscles a little more. My noble friend Lord Norton referred to Parliament being very restrained. Perhaps we must reconsider our excessive restraint; the time when we should do so has long passed. I use those words particularly in the context of statutory instruments. My noble friend Lord Hunt talked about the statistics—how, of well over 100,000, only 16 instruments had been voted against in the years since the war. It should become normal to amend statutory instruments. They are crucial; they are a vital part of the legislative armoury of any Government, and Parliament should not merely meekly acquiesce whenever a statutory instrument is brought before it.

The two reports that are the subject of tonight’s debate are representative of the signal service that the committees of this House provide for us. We owe the Constitution Committee under the noble Baroness, Lady Taylor of Bolton, and the committees under my noble friends Lord Blencathra and Lord Trefgarne a very real debt of gratitude. If we are to repay that debt of gratitude, we all—individually and collectively—have to flex our muscles a little more.

Photo of Lord Dunlop Lord Dunlop Conservative 6:00, 12 June 2019

My Lords, it is a pleasure to follow my noble friend Lord Cormack. I am afraid that I cannot compete with his 50 years of service. Nevertheless, I also support the remarks of my noble friend Lord Norton of Louth, particularly his recognition of the hard work and support that we get from our committee staff, which is hugely appreciated.

Today’s debate could not be timelier. In the 19th century, John Bright first coined the phrase “mother of parliaments” to describe England. This phrase is commonly but mistakenly attached to our Westminster Parliament itself. This reminds me of the burning question, previously posed by my noble friend Lord Norton: if England is the mother, who is the father? Perhaps as a Scot I will leave that question hanging in the air, but the phrase nevertheless captures the long-held and widespread admiration around the world for our system of parliamentary democracy. It is fair to say that the process of exiting the EU has tested perceptions of this pre-eminent standing as never before. It is therefore more important than ever to demonstrate the effectiveness of our democratic procedures. The parliamentary arithmetic means that the traditional balance of power between Parliament and the Government has now shifted. Parliament is now very much in the spotlight and we must demonstrate that our processes are fit for purpose.

What does this mean in the context of legislative process? The job of Parliament is to produce good law. As the noble Lord, Lord Beith, has already said, the classic tests of good law, as described by the Office of the Parliamentary Counsel, are that it is necessary, effective, clear, coherent and accessible. We are more likely to achieve good law when parliamentary scrutiny is transparent and effective, just as good government is more likely when the Administration in power are kept on their toes by strong and constructive opposition.

What is the current state of play? The evidence received by the committee suggests that the quality of legislation remains variable. Our report card can perhaps best be summed up as, “Some improvement, but could do better”. Against that background, I want to focus my remarks on two aspects covered in our first report: the first is legislative standards, which my noble friend Lord Norton touched upon in his introduction, and the second is consultation. The Government’s response to our report seems to regard the quality of legislation as simply a matter of drafting. I agree with my noble and learned friend Lord Mackay and others that good law also relies crucially on clarity of policy purpose. Even the very best parliamentary draftsman, adhering to the most rigorous guidance, cannot transform vague and ambiguous policy into clear, coherent and effective law. If there is a lack of legislative clarity, then the burden inevitably falls on the court to interpret and adjudicate—not something that either Parliament or the judges should wish for.

There are many reasons, identified in our report, why the policy intent might be vague or ambiguous. The policy might still be evolving, there might be unresolved ministerial differences or Ministers might wish to preserve their room for manoeuvre in how policy is implemented. There is a link here, as we have already heard, to our second report and the committee’s concern about the growth and use of delegated powers since the early 1990s. As the second report sets out, we are now averaging 3,000 to 3,500 statutory instruments a year, with a near doubling in the accumulative length, running to nearly 12,000 pages a year.

The desired standard is that all policy objectives be in the Bill, with only the technical details left to secondary legislation. However, there can be no doubt that often, significant policy choices are being left to delegated legislation. The Space Industry Bill, containing 100 delegated powers, is a recent example cited in our report. That is why it is so important to see the secondary legislation in draft when considering the primary legislation, to appreciate how the legislative scheme works overall. One approach to tackling this variability in quality is that legislation should not be brought before Parliament unless and until it has met a threshold of legislative standards, as we have heard. At present, prime responsibility for policing the quality of legislation before introduction lies with the Parliamentary Business and Legislation Committee of the Cabinet. Specific responsibility is placed on the shoulders of PBL’s chairman, the Leader of the House of Commons, and the law officers. This is a responsibility that the Constitution Committee regards as particularly important.

My own experience as a Minister attending PBL is that it often did challenge robustly whether legislation was necessary. It did worry about the extent of and justification for delegated powers, not least because of the certain knowledge that your Lordships’ House—and perhaps in particular, the noble and learned Lord, Lord Judge—would be forensic in its scrutiny of such powers. However, other aspects of parliamentary counsel’s good law test were perhaps the subject of less discussion. Unsurprisingly, political imperatives will always loom large, given the five-year electoral cycle and the 18-month average life—apparently—of a Minister in a particular post.

The Constitution Committee has reiterated its support for an external check, with the development of legislative standards applied by a legislative standards committee, supplementing and enforcing the gatekeeper role of PBL. As the House has already heard, this is not a new proposal, but it remains as relevant today. This should not become some tick-box exercise perhaps akin to impact assessments, which, I have to confess, as a Minister I always found less something to be desired than an after- thought in the preparation of legislation. One could envisage that over time, the reports of such a committee would acquire influence with government, thus helping to change behaviour and raise standards.

My second point is about consultation. Our first report highlights the importance of evidence-based policy-making while pragmatically recognising that sometimes, evidence will not exist. Of course, it is perfectly valid for Ministers to exercise their political and professional judgment in policy-making, for which they will be answerable to the voters. However, when an evidence base does exist, the committee believes that it should be routinely published. Perhaps the Minister could indicate when he responds whether he agrees with that. One way to build evidence is to consult those who are affected by a policy or a piece of legislation. The key here is that the informal and formal consultation processes should be accessible to a wide range of affected parties and not just the usual suspects, who already understand how the system works. For example, we will not create a fully dynamic economy if we listen only to incumbents and do not reach out to challengers too. Equally, in areas of social policy, the most vulnerable and disadvantaged might be the least organised and equipped to ensure that their voices are heard.

We therefore need to be proactive, as our report makes clear, to ensure that policy and legislation are informed by a diversity of views. Perhaps the Minister could say how the Government are addressing this point. Progress has been made to improve the quality of legislation, but more work is clearly required. I hope that the Government will engage positively with the recommendations in the two reports we are debating today.

Photo of Lord Judge Lord Judge Judge 6:09, 12 June 2019

My Lords, I thank everyone in the House for their kindness in allowing me to move about up and down the list. It is always difficult to change your place in the list when you are before some difficult judge, but no one has been too difficult today.

I am speaking to the delegated legislation part of this debate. I do so as a member of the Constitution Committee, on which I have now served for four years, and it has been the most wonderful experience. I want to underline something that is absolutely obvious to us as committee members: when it comes to evaluating the recommendations of a committee such as this and indeed all the committees of this House, it is perhaps worth underlining that in those four years, although we are divided equally into four Conservatives, four Labour, two Liberals and two Cross-Benchers—and we have had different chairmen, the noble Lord, Lord Lang, and then the noble Baroness, Lady Taylor—there has not been a single moment when I as a Cross-Bencher have been able to detect the tiniest, flimsiest division along party lines. There were disagreements but they were nothing to do with party. That should add a proper respect for the reports that have been produced, not just by us but by the various committees in this House. It is very easy to overlook it, and it is easy for the Executive not to realise that the committee reports are cross-party and therefore should carry more weight.

There have been 10 speeches in this debate. As a judge, after 10 I might have said, “I agree and have nothing to add”, and in a sense I do not; I agree with them all. However, behind the courtesies of this debate, the very carefully measured language of the speakers and of the reports themselves and, dare I say it, the carefully measured fulminations of the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Committee, there is a constitutional predicament that we are not grasping. We, by which I mean parliamentarians in both Houses, seem to be on an extraordinary, irrevocable course to vesting the Executive with more power. This is not deliberate; we are not sitting here saying, “Hooray, let’s give the Executive more power”. It is the consequence of the way in which we are failing to address the issue of delegated legislation.

Although “delegated legislation” is two words in one phrase, there are two aspects of it that we tend to see separately but which are actually totally integral to each other. There is the enactment of primary legislation, which empowers the ministerial use of delegated legislation, and then there is our failure to reject the secondary legislation that Ministers subsequently produce. The two stand together. It is obvious that nothing I want to say suggests for a moment that I want to undermine the usefulness of delegated legislation; we obviously have to have it, matters of detail have to be addressed and we have to have procedures to enable primary legislation to be fully scrutinised in both Houses to be implemented and updated. So the problem is not with delegated legislation but with its misuse, and its constant misuse within our constitutional processes.

Our report underlines that there is not just one form of misuse. Let us just look at skeleton Bills. I want to read these words aloud and slowly and then ask a question. They are,

“we find it difficult to envisage any circumstances in which their use is acceptable”.

I would love the Minister to stand up—I know he cannot and will not; he would cause a revolution if he did and, I am sorry to say, none of this would believe him anyway, but it would be wonderful—and say, “That’s it, there will be no more skeleton Bills; we agree”. We say all this, but they still come. I shall come to Henry VIII clauses in a minute, but the report is saying nothing new when it says they are,

“a departure from constitutional principle”.

Would it not be nice if the Minister stood up at the end of the debate and said, “I agree; they’re a departure from constitutional principle, to be contemplated only where a full and clear explanation and justification is provided”.

I am being not forceful but—I hope—direct, because we are very courteous in how we issue our complaints about the way in which the Executive behave. All these different processes, cumulatively combined, undermine parliamentary control of the Executive, full stop. Each of them has been discussed time and again. We always overlook the very simple proposition that if you give power to someone then it will be used and, having given power to them, you are not going to get it back. That applies here as anywhere else. So I want to highlight what I shall identify as the “try-on” approach to legislation, which is one more manifestation of the problem.

The try-on is simply this: “Let’s see if we can get away with it”. For me, the starkest example was the recent sanctions Bill, which proposed that by delegated legislation the Minister should be able to create criminal offences—not fines but criminal offences—punishable by 10 years’ imprisonment, which is a major criminal offence. But what else was the delegated legislation going to allow them to? The proposal was that the Minister should, by delegated legislation, be able to decide what defences there should be. Of course I am glad they thought that there might possibly be a defence to a crime that they had created but, worse, it would have enabled the Minister by delegated legislation to change the rules of evidence for any relevant trial to which the individual was brought, just like that. What is the point of having a criminal justice system? The Minister can say, “Oh, you can’t use that” or “This can be admitted in evidence against you”, although perhaps five centuries have demonstrated the dangers to safety of convictions of admitting it.

So delegated legislation was proposed which would have constituted a remarkable gift to the Executive to interfere with the administration of justice. It was a try-on, and we noticed it. Good. This time we were able to argue against it, and the end result was that the House was horrified and it did not pass, but it was in the legislation as a try-on. Good heavens above, how many times has the Constitution Committee said that the creation of a criminal offence by delegated legislation requires full parliamentary scrutiny? Do not worry about that; just ignore it and stick it in.

On Monday, we debated the courts and tribunals Bill. The breadth of that Bill is quite astonishing. By legislation, if it is passed unamended, a Minister, the Lord Chancellor, will be vested with powers to change the entire processes of family, civil and tribunal justice on the basis of a recommendation made by a committee of which he, the Lord Chancellor, has appointed a majority of the members. Wow. So by delegated legislation, the try-on is that the Executive will be given control over the judicial processes in those courts. I regard it as a try-on because, if not, it is an indication of ignorance of basic constitutional principles, and the relevant department is the Ministry of Justice.

In view of the other things that have been said, I want to say a brief word about Henry VIII. I have gone on about Henry VIII—I refer to the Constitution Committee six years ago. Everyone knows that Henry VIII clauses are a menace but they come rolling along like the Mississippi, except that the Mississippi rolls between pretty well-known banks but in this case the river just grows and the sides are flooded. What attention did anyone pay? I ask this question rhetorically, although there may be an answer to it: when did we last see a Bill in which a power given to a Minister to dissapply or amend existing primary legislation was missing? There must be a robot in every department that sticks this provision in, or maybe it is a consequence of the development of modern technology. “Good heavens, there is a computer, let me press the button—H8, press it”. It does not merely stop at one clause. Sometimes Bills are decorated with Henry VIII powers—festooned with them. It overlooks something rather important. We call them Henry VIII powers because they are unacceptable to us: Henry VIII was an ogre and a menace, so we think that shows how we disapprove of them. However, it overlooks this simple fact: under the Proclamation by the Crown Act 1539, Parliament declined to give him the power to overrule a statute. It expressly stated—it was not by implication—that he had the power to work through proclamations, but not if it interfered with an existing statute—if my memory is right, particularly one passed during his reign, which I thought was a rather nice touch.

I want us all to pause for a moment. Which would we prefer? Would we find a summons to Henry VIII to explain ourselves for some piece of legislation that was going on and to account for it—and our failure to support him—marginally more alarming than a call to visit No. 10 for an interview with Mr Blair, Mr Brown, Mr Cameron or Mrs May? I think we might; but we are giving these powers to the Prime Ministers of our day which the men of the 1539 Parliament were not prepared to give to the dictating ogre who ran the country in theirs. We give powers that Parliament would not give to the great king.

I have a couple of more points. I completely agree with the noble and learned Lord, Lord Mackay, about guidance, but I highlight something which was not covered in our report because we have only just noticed its emergence: a new scheme, or maybe an old scheme revived. You produce a Bill—for example, the Trade Bill. You set it all out in regulations—nine separate regulation-making powers, all based on delegated legislation—but it is not enough, because these are merely “for example” or “among other things”. What is that supposed to mean? “Please, Minister, do what you like”. We have to watch for that and we need to be very alert to it.

I come to the scrutiny process—the second limb. I must try to be moderate about this but the scrutiny process is a nonsense, is it not? It does not happen. It is 40 years since the House of Commons rejected a statutory instrument; not one piece of secondary legislation merited being rejected. I have made plenty of mistakes in the last 40 years and I expect we all have, but, funnily enough, not a single piece of secondary legislation was so deemed.

I turn to the tax credits which were referred to earlier in today’s debate. When this House exercised its undoubted constitutional authority to reject that legislation, it was the sixth time in the last 50 years—not exactly a declaration of independence, was it? But, lo and behold, we had an entire review put into place and we were told that the Lords had interfered with a decision of the Commons. You might have expected the Government to go back to the Commons and say, “Please, just tell the Lords they are wrong”. But the Government did not, so when the Lords rejected it, the Government did not go back for support. The original secondary legislation was a case of, “let us see if we can get it through”. I have looked up to see how much time seemed to have been spent on that legislation in the Commons and it was not very long.

We overlook something else which this is revealing. Maybe the point of the review was just to discourage us from rejecting secondary legislation; but the incident graphically highlights the dangers of giving Ministers power to use secondary legislation. The power exercised by the Conservative Government in relation to tax credits was based not on their own legislation but on legislation enacted when Labour was in power—the Tax Credits Act 2002. Some 13 years or so after a Labour Parliament had given a Labour Minister these powers, those same powers were being exercised by a Conservative Government. The Opposition in this House certainly involved a great number of Labour Peers who spoke against it, which eventually led to its defeat. I cannot remember the specific words they used at the time, but the meaning of their words conveyed that this was a misuse of power—what a lesson to us about the long-term consequences of enacting powers in a Government to use secondary legislation to do almost anything they like, and it was not petty cash that was involved in the issue.

I understand that there are some problems--our system has not caught up with the way we do our work—but in the end, virtually rubber-stamping laws proposed by Ministers exercising secondary legislation powers simply will not do. We have got into the habit of accepting it, and when you become habituated to a situation in which you do nothing or very little, however much you may not like it—even if you do not agree with it—and cease to question, the habit becomes entrenched. We must be hawk-eyed in our scrutiny of delegated legislation.

I have one last point. We are enmeshed in Brexit. Some 10 years from now, Brexit will have come or gone and some of the disappointment the public have in their political processes will have declined; but these powers will still be there. Unless something is done about them, this is what we should shall expect to happen. The public can be very strange in the way the democratic process works. When the public are utterly disillusioned with their political arrangements, as I think they are now, they may vote into power a party of extreme authoritarian views—for the left or the right, either equally unacceptable to us today. But who knows? That new Executive, if elected, will not have to hunt in very obscure corners to find legislative powers necessary to carry out an abhorrent programme.

Photo of Lord Tyler Lord Tyler Liberal Democrat Lords Spokesperson (Constitutional and Political Reform) 6:28, 12 June 2019

My Lords, it is a very difficult experience for me to follow the noble and learned Lord, Lord Judge. I look forward with great interest to the Minister’s response to him. I have known the Minister for a very long time and I have great respect for his debating skills, but he has to produce quite an answer for us this evening because the noble and learned Lord, Lord Judge, brings expertise, experience and powers of persuasion to your Lordships’ House which not many others of us can hope to replicate.

I was extremely impressed with the introduction to this debate by the noble Lord, Lord Norton of Louth, who, of course, had a major role in the production of these reports over the years and of the whole series that he described—these are just two of four. This is a whole comprehensive analysis of the way in which Parliament does business. They contain a formidable and forensic analysis of a major weakness of our Parliament, one that Members on all sides of the House have referred to today—I think particularly of the very interesting description by the noble Lord, Lord Hunt, of their severity.

We have also had the benefit of four members of the committee bringing different aspects of their experience to bear on this problem—the noble and learned Lord, Lord Judge, of course; my noble friend Lord Beith with his long experience of analysis of legislation in the Commons; the noble Lord, Lord Dunlop, as a former Minster; and the noble Lord, Lord Norton, himself—so we heard a whole range of views. The approach has been so comprehensive over the years, and now with these two reports, that it is very difficult to find any fault in the reports. A great deal of thought can be given to what we can do to implement their recommendations.

For example, I have not been around as long as other Members in either House, but I remember the days when we used to have a Green Paper, a White Paper, occasionally a draft Bill and then the Bill itself. Then, of course, there has been the suggestion that we should have post-legislative scrutiny afterwards. When did we last have an effective Green Paper process, let alone a good White Paper that was sufficiently comprehensive to deal with all the issues that were going to be raised in the draft Bill? These reports are extremely timely and very relevant, of course, after the bruising experience we have had—all of us, in both Houses, with primary and secondary legislation—during the Brexit process. As some of us anticipated early on, all too often we have been urged to cut corners and short-circuit normal procedures in the interests of expediency, with no regard for the very dangerous precedents we might be setting, as the noble and learned Lord, Lord Judge, just said.

My prime example is one that has already been referred to by the noble Lord, Lord Blencathra. Curiously, it is that of a Private Member’s Bill handed down by Defra, which Ministers feared would not be handled at speed if, in the Brexit shambles, it was processed in the correct way, as a hybrid Bill. He referred to the report we produced in the Delegated Powers Committee. I want to quote one sentence from the conclusion, which he did not mention, that demonstrates what our committee felt:

“It is an attempt, upon flimsy grounds, to set aside the procedures which Parliament has put in place to protect the interests of citizens who would be unfairly affected by legislation”.

At this point I pay tribute to the noble Lord, Lord Blencathra, the chairman of that committee. I think he will understand that when he took over as chairman from the noble Baroness, Lady Fookes, some of us had some concern and just a little hesitation: after a distinguished ministerial career, we wondered whether he would be quite as forthright and robust as the noble Baroness. I have to say he has been more than, and has been extremely effective as our leader and chairman. I am delighted to pay tribute to him as I come to the end of my service on that committee.

This is an exceptional but demonstrably vivid example of the way in which the Executive have been trying to undermine parliamentary scrutiny and the opportunities in this case for public engagement, but the charge sheet is collecting other examples. I will concentrate on the delegated powers report, because of my DPRR Committee work, but my approach to both sets of recommendations owes much to my previous membership of the Joint Committee on Conventions of 2006. Here, I pay tribute to the noble Lord, Lord Cormack. He emphasised that holding the Executive to account is the prime function of Parliament and of course, that Joint Committee of both Houses looked very carefully at the scrutiny role of your Lordships’ House in that context. Central to its recommendations were some extremely important suggestions about how we in this House should operate. It had the endorsement of MPs as well, as I shall come to in a moment. For today’s debate, I shall mention a couple of points.

In updating the so-called Salisbury/Addison convention, the committee was unable to make a definitive recommendation on the status of legislation brought forward by a minority Government. Having identified Bills introduced by an incoming majority Government as “manifesto Bills”, which deserve respectful treatment by the Lords, obviously the status of a Government whose manifesto had not been supported by a majority was less easily defined, so we were not able to make a recommendation on that point. However, the committee made a very robust recommendation about secondary legislation. I am sorry to read it at length but I think it is extremely important in the context of today’s debate.

“The Government appear to consider that any defeat of an SI by the Lords is a breach of convention. We disagree. It is not incompatible with the role of a revising chamber to reject an SI, since (a) the Lords (rightly or wrongly) cannot exercise its revising role by amending the SI or in any other way, (b) the Government can bring the SI forward again immediately, with or without substantive amendment, as described by the Clerk of the Parliaments, and (c) the power to reject SIs gives purpose and leverage to scrutiny by the Joint Committee on SIs, and by the new Lords Committee on the Merits of SIs. The Government’s argument that ‘it is for the Commons, as the source of Ministers’ authority, to withhold or grant their endorsement of Ministers’ actions’ is an argument against having a second chamber at all, and we reject it”.

That is the context of these reports from the Constitution Committee and it should be noted, first, that the noble Lord, Lord Strathclyde, was then Leader of the Opposition, so he was a vigorous and vociferous supporter of that view. Secondly, the committee’s report and recommendations were unanimously agreed by both Houses. As the noble and learned Lord, Lord Judge, has consistently argued, not least this afternoon, there is obviously a democratic deficit here, one which has been brought into sharp relief in recent years, especially during the tsunami of Brexit secondary legislation in the last 18 months. As an example of the totally inadequate care taken in drafting major legislation, reporting on the Agriculture Bill our committee described the number of delegated powers as “ominous” and concluded that,

“it cannot even be said that the devil is in the detail, because the Bill contains so little detail”.

The noble Lord, Lord Blencathra, our chairman, referred to that Bill earlier.

In passing, I also strongly endorse the views expressed by the noble and learned Lords, Lord Mackay of Clashfern and Lord Judge, and the noble Lord, Lord Trefgarne, about the extent to which the use of “guidance” seemed to have slipped into this system: it seems very often to be given the same significance and credibility as ministerial assurances to us as an attempt at more substantial orders. The noble and learned Lord, Lord Judge, referred to the use of “for example”: this seems to be one step further.

In the report we are discussing today, the Constitution Committee is characteristically forthright, saying:

“If the Government uses delegated powers to propose secondary legislation which makes technical provision within the boundaries of the policy and has previously been agreed in primary legislation, Parliament is unlikely to wish to block statutory instruments. However, we are concerned”— and this report has shown—

“that these boundaries are not always respected and that ministers may seek to use statutory instruments to give effect to significant policy decisions. Without a genuine risk of defeat, and no amendment possible, Parliament is doing little more than rubber-stamping the Government’s secondary legislation. This is constitutionally unacceptable … If the Government’s current approach to delegated legislation persists, or the situation deteriorates further, the established constitutional restraint shown by the House of Lords towards secondary legislation may not be sustained”.

As the noble and learned Lord, Lord Judge, has said, this is a committee representing all parts of your Lordships’ House. This is not just the opposition parties, or just those who have never had experience of ministerial office; it is people of real experience from all sides of the House who are putting down a very important marker for us all. I remind your Lordships that this report was published as long ago as 20 November last year, since when I think it would be fair to say that the situation has undoubtedly deteriorated further. The avalanche of ill-considered Brexit-related SIs is really extraordinary.

The response of the then Leader of the Commons was dated 25 January. I entirely understand the point made by the noble Lord, Lord Norton of Louth, that the committee did not find that answer very acceptable. Had there been another answer since then as a result of some of the recent experiences we have all had, we would find it even more complacent. In her letter, she wrote:

“The Government agrees that all those involved in the preparation of legislation have a responsibility to assess thoroughly whether a proposed grant of a delegated power is appropriate. The Government will continue to work to ensure that this is something that is properly scrutinised during the bill preparation phase so that powers are included in bills only where appropriate and where their use can be justified to Parliament”.

The noble Lord, Lord Cope, described that response as cavalier. He is always so tactful, having had experience in both Houses; now we would say something even stronger as a result of our more recent experience. Subsequent experience of the balance between primary and secondary legislative proposals from her ministerial colleagues suggests that her attempt at reassurance was entirely without foundation. The noble Lords, Lord Trefgarne and Lord Blencathra, have had such a difficult time in their respective committees dealing with the SIs that have come forward in recent months.

Members of your Lordships’ House may not be aware that some MPs are also increasingly appreciative of the increasing deficiency in the balance of power between the Executive and legislature in this respect. There has been widespread welcome among MPs for early sight of DPRRC recommendations. Indeed, they have used them in Bill Committees there. Although this was a pragmatic response to vital Brexit legislation, I am sure that the enthusiastic use of these reports will ensure that they continue to be supplied in good order and good time to Members of the other place.

Members of the other place have also observed in the context of Brexit the unfortunate precedents which could be established in the name of expediency. The series of crash-out no-deal SIs that came before both Houses as the then 31 March deadline loomed persuaded many MPs, as well as Peers, that we were all being treated as voting lobby fodder. In that context I particularly admire the work done under very difficult circumstances by the noble Lord, Lord Trefgarne, and his colleagues in the SLSC.

What is to be done? Ideally both Houses, perhaps with a Joint Select Committee, will have to address these issues. However, given the constitutional challenges now threatening the Commons and likely to preoccupy MPs for many weeks to come—as we have again been reminded today—maybe your Lordships’ House should take the lead. Given the widespread acknowledgment that we have given much more attention to this scrutiny role, that may well be logical and acceptable to all sides.

Personally, I hope that we can look again at modifying the all-or-nothing bilateral choice between acceptance and rejection of SIs. Perhaps we could again look at instituting a Motion that asks the Executive, with our reasons given, to reconsider. That would reduce the need for extreme veto and probably phase out meaningless regret Motions. As my noble friend Lord Beith said, regret Motions do not really have a happy history. What is surely unarguable is that the clear, consistent and compelling recommendations of your Lordships’ Constitution Committee cannot be left to gather dust on some bureaucratic shelves in Westminster or Whitehall.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Shadow Leader of the House of Lords, Shadow Spokesperson (Northern Ireland), Shadow Spokesperson (Cabinet Office) 6:44, 12 June 2019

My Lords, this has been an interesting debate, and the experience and knowledge of this House has been extremely evident. It is hard to do great justice in one day to these two very detailed reports. I thank all those on the committee who took part, particularly the noble Lord, Lord Norton of Louth, who gave a very concise and precise introduction to today’s debate.

This may be a futile suggestion, but I wonder whether we should suggest that these reports be read by every Minister, aspiring Minister, parliamentary draftsperson and civil servant. If we were to act in accordance with the principles held within these reports, our process of legislation might be slightly slower but it would also be more effective and prevent problems further down the road. Both reports are largely about process, but they also rightly acknowledge the political environment we operate in and that political judgments have to be made. Inevitably, this will create tensions from time to time, but good process—as outlined in the reports—can minimise that.

We must recognise that there has been progress with process. I have been reflecting on my time in Parliament since I was elected to the House of Commons in 1997. Back then, Explanatory Notes were perhaps a sentence or two about what the clause did—they were not really Explanatory Notes at all. That has changed. We have seen progress in pre-legislative and post-legislative scrutiny. I served on one of the first standing committees that started its deliberations on a Bill with evidence sessions before moving on to the Bill’s clauses.

We are making steady progress, but when reading through the reports what struck me was that Ministers, in their evidence and discussions with the committee, clearly understand the value of good process. There was very little disagreement about how things should be done, but there seemed to be a complacency in how close the Government think they get to good practice. Given the agreement on basic principles, the key question is why, given the agreement from Ministers when giving evidence to the committee, the legislation brought before Parliament often falls short of those principles.

I was disappointed by the Government’s response to the committee. We have to get defensiveness out of the government mindset on this. I hope that the Minister tonight, who is not known for being defensive or rejecting good ideas, will perhaps be more positive.

There is a wealth of information here, but I shall make a few comments about three broad themes. My first point is on the issues around evidence and judgment. Good evidence and process cannot replace political judgment, but they do enhance it. Whether we agree or disagree with an actual decision obviously depends on our own political perspective—that goes to the heart of the political principle of a Bill—but most of our deliberations in this House are on the viability of legislation and whether it achieves what it aims to do. We examine any possible unintended consequences and the evidence for that proposed course of action.

Although there are some examples, which are in the report, where legislation was unnecessary to enforce a policy, I am not automatically critical of a Government who feel that the importance of an issue is so great that legislation is perhaps not strictly necessary but is nevertheless desirable or helpful. It may be just to send a very public message about the commitment on an issue, which is not ideal, but they may also consider that the longer-term sustainability of that policy requires a legislative base. We cannot dismiss a public demand or political desire to do something in response to an issue, but that is not to give permission to ignore evidence or introduce badly drafted legislation.

I think it was on the Immigration Act 2016 that the Government sought to outsource immigration checks to landlords. This House was able to force the Government to introduce a pilot scheme first, although I am not convinced about a pilot scheme that seeks to prove that something can work rather than to test the viability of whether it will.

The passing of the Trade Union Act in the 2015-16 Session was a really good example of political views taking precedence. Even after passing all its stages in the House of Commons, we still had no sight of any impact assessment. I was grateful when the House overwhelmingly supported my proposal to allow a very controversial, highly political part of the Bill to go to a separate but parallel Select Committee. The evidence sessions that took place brought more light than heat to the debate; interestingly, as we moved back on to the Floor of the House, one Peer, who had strongly supported the Bill throughout, later candidly admitted how little he had previously known about trade unions.

Another example of politics overriding evidence was the Parliamentary Voting System and Constituencies Bill. During the course of the Bill, I asked for the justification and evidence base for reducing the number of MPs to 600. I was told by the then Leader of the House that it was “a nice round figure”. We never had any other explanation for how that number was arrived at, but I sometimes wish the Minister had been talking about himself and not the number of MPs that he was reducing the House to.

However, that does not denigrate all political judgments. As a Minister, I recall being informed that I had to authorise a certain course of action because legal advice had been taken—unbeknown to me—and the lawyers said that I had to sign it off. It was completely against my principles to do so and I took the view that I was entitled as an elected representative and as a Minister to make a value judgment on the evidence before me and my own views—so I did.

After two days in court, when I was judiciously reviewed, the judge fortunately agreed with me. It is an important judgment because it says that if you have the evidence, you can bring political judgment to bear as well—it is not just a legal decision. If it is to be just a legal decision, we might as well do away with politicians and just have lawyers. However, those value judgments and political judgments have to be made transparently and with evidence. Clearly, the committee’s recommendation for producing the evidence base or explaining the justification is the right one.

In some ways, I should like us to look more at impact assessments; that is one way in which we could get better evidence. I regret that the Government do not often follow their own guidance on the availability or content of impact assessments. At times, the content has been of little value. When one looks at the alternatives, it just says, “It doesn’t achieve the objective”. It does not say why or what other options have been looked at. A good impact assessment could be a great tool for examining legislation and a real help to the Government and Parliament.

I apologise to the noble and learned Lord, Lord Mackay of Clashfern, for being briefly out of the Chamber while he was speaking. My noble friend Lord Stevenson took some notes for me and I look forward to reading them. The noble and learned Lord made a wise speech, talking particularly about delaying the implementation of a Bill to give further consideration—a point certainly worth considering.

On pre-legislative scrutiny, the reports—and noble Lords tonight—have commented on consultations. Governments set great store by consultations. I am not sure why the consultation period has been reduced and hope the Minister will explain that. However, perhaps a more serious point is that, as consultations have become more embedded in our political culture, they have become largely meaningless. They are sometimes an exercise that must be gone through, with no one taking note of what they contain.

If the Minister does not have the information to hand, perhaps he could write to let us know the number of Government consultations in any one year; the average and longest time it takes the Government to respond; and—a point drawn out in the report—how consultees are chosen or informed of the consultation.

I recall meeting officials to consider consultation responses before signing off a final report on a particular issue. We had a good response, with several good suggestions within the overall policy framework set by the report. However, no changes were proposed to the final report. I asked, “Are there no suggestions worthy of change?” There were, but they were not put in until I raised the question. We made those changes, but too often I fear that good suggestions go into the paper shredder because there is not enough desire to make the changes—it is too much bother once the draft has been printed.

I also recall a time when the consultation response was not even available in time for consideration of the Bill. If we are to have consultations, they have to be meaningful. Let us not pretend that we are consulting when all we do is go through the motions.

I welcome the comments on draft Bills. I know how well this works and that it avoids later problems. I appreciate that, immediately post-election, it can take time for a new Government to get legislation ready, as we saw with the skeleton Bills this House received in 2015. The Childcare Bill started in this House because it was considered non-controversial. In policy terms, it was completely non-controversial, but with a skeleton Bill policy was unacceptably left to delegated and secondary legislation—as the noble and learned Lord, Lord Judge, pointed out—just because it had not been worked out. That Bill had highly controversial detail, although the policy framework was not controversial. It had a pretty rough ride in your Lordships’ House.

There is a way round that. In most cases, discussion between the Government and Opposition can take the Bill in segments or take part of the Bill and come back to it. We can get good scrutiny without trying to derail the Government’s programme. I entirely endorse the value of Green Papers and White Papers.

A point was made about the role of the Law Commission. I wrote an article for the Times Red Box recently, saying that, given the current hiatus in legislation, we should be asking the Law Commission whether there is an opportunity to do more consolidation, with sentencing Bills welcome. We all know that legislation is hard to decipher. It causes mistakes, in sentencing, for example, and in interpretation. There is an opportunity here to use the time when we are not doing as much legislation as we could be to look at some of those consolidation Bills.

On the appropriate use of delegated powers, I can recall, back in the day, about four years ago, when even the most experienced of political journalists had no knowledge of and showed no interest in secondary legislation. Then came tax credits and the Government’s wildly exaggerated response to the actions of your Lordships’ House in the form of the report of the noble Lord, Lord Strathclyde. I take a slightly different view from the noble and learned Lord, Lord Judge, on this. This House did not reject the tax credits—it tried to find another way without rejecting them completely. The fatal Motion was rejected by your Lordships’ House. The Motion passed asked the Government to have another look. It was the late, great Patricia Hollis’s Motion that said, “Have another look at this”. This House provided a breathing space for the Government to reconsider and they took the opportunity to do so. We had to be creative to do that, but perhaps we should look at building that into our processes on secondary legislation, so that we do not have an all-or-nothing approach of either accepting or rejecting, as the noble Lord, Lord Tyler said. There is something else we can do to be constructive.

That problem was of the Government’s own making. It was not that the previous Government had allowed for the changes; the Government were abusing the system. I think the noble and learned Lord, Lord Judge, made that point as well. When the Government misuse the delegated powers procedure—it has been abused once—we have to be creative in our response. The content of the tax credits SI—the significance of the change that was being made—was far more appropriate to primary legislation. That is why this House responded as it did.

We are now in a position where the number and range of SIs, as shown in the charts and documents, is unsustainable. Something I have suggested in the past, particularly in relation to Brexit but it applies across the board, is to have an earlier sight of drafts of SIs so that public and House consultation can take place. The report makes the point that amendments can be made before they get to the House. However, as I said, secondary legislation has been used when policy has not been worked out. A trusting and generous person might suggest that this is to provide additional time for the Government to bring forward the detail. But a suspicious person—I would not put myself in that category—might suggest that it is to evade proper scrutiny and the possibility of amendments.

Looking at the committee’s recommendations, I may be wrong, but I sense that the House would be reluctant to end the constitutional restraint that we respect. We are an unelected House; we recognise the primacy of the Commons and the value we bring to legislation. That restraint, however, must not be abused by the Government. That is the problem at the moment. If we keep to our side of the deal, there is an obligation on the Government to do the same and I do not think that is happening at the moment.

The current position is deteriorating and it is in no way due, as the Strathclyde report tried to make out, to any tension between the two Houses of Parliament. The only tension is between the Government and this House when the Government use statutory instruments inappropriately. It was Patricia Hollis who proposed to the Procedure Committee that there should be a middle way—a different way of looking at SIs—and I think that is something we should revisit. I entirely agree that a Motion to Regret is a way of putting something on the table and making a point, but the Government rarely listen, except in the most extreme cases. I should like that to be further considered by the Procedure Committee and this House.

I have gone on for slightly longer than I intended, partly because of the quality of the debate. I hope we will hear a positive response from the Minister tonight, but we have work here. This is not something that we will debate today and walk away from. Two further reports are to come. The message is that this House is restrained. We play our part and undertake our role seriously, but we expect the Government to hold to their obligations and responsibilities as well.

Photo of Lord Young of Cookham Lord Young of Cookham Lord in Waiting (HM Household) (Whip), Lords Spokesperson (Cabinet Office) 7:00, 12 June 2019

My Lords, I begin by thanking the noble Baroness, Lady Taylor of Bolton, in her absence, and the members of her committee for their excellent reports, and my noble friend Lord Norton of Louth for introducing them. They have provided the basis for a well-informed, thoughtful debate on a specialised subject that may not feature on “Yesterday in Parliament” but which is vital to the effective holding of the Executive to account and, as a result, the operation of our parliamentary democracy—a point well made by my noble friends Lord Hunt, Lord Cormack and Lord Dunlop. That is the context in which we should approach this debate: these documents are essential to what Parliament is all about.

Some of the recommendations—such as for a legislative standards committee, mentioned by my noble friend Lord Dunlop—are for the House to reflect on. I shall try to address the recommendations directed to the Government. The noble Baroness, Lady Taylor, and I have much in common when it comes to the subject, both of us having held the office of Leader of the House of Commons, and so chair of the PBL Committee, and that of Government Chief Whip, who has a key role to play in the deliberations and conclusions of PBL. Although I am standing here in my capacity as spokesperson for the Cabinet Office, I hope to respond to the debate with the experience I just mentioned at the forefront of my mind. I hope this means that I can address the issues from a similarly well-informed position to that of the noble Baroness who chaired the committee.

I will start with the committee’s fourth report, The Legislative Process: Preparing Legislation for Parliament. The Government considered the report carefully and provided a written response addressing specific areas of interest. I will set out some of the steps we are taking to improve the preparation of legislation for Parliament, and respond to some of the suggestions made in the debate. The committee said that the decision to legislate should not be taken lightly, and I could not agree more. At the moment, we find ourselves in atypical times in which it would be hard to say that we are overburdened with legislation. When I recently appeared before PBL with a Bill in my hand, the committee was actually pleased to see me.

In normal times, the PBL Committee remains a very strict gatekeeper. Demand for legislative time greatly exceeds supply—a point made by the noble Lord, Lord Beith. I am sure that any Minister, former or current, would agree that appearing before PBL is one of the most challenging experiences of being in office—a point made by my noble friend Lord Dunlop. It is a rigorous cross-examination, conducted without the Minister having recourse to any professional advice from his or her department and in which ignorance of the details of his Bill can result in delay or loss of the slot. Ministers have certainly left empty-handed, and any Minister looking to use legislation as a way to shine or to introduce legislation that is purely declaratory would have a very hard time. I can also say as a former Chief Whip that failure to impress PBL can also have an adverse consequence for the career of a Minister, however senior.

I was asked whether pre-legislative scrutiny was just an option. PBL asks all Ministers whether they can publish a draft of a Bill or go through pre-legislative scrutiny, so it is much more than an option: it is infinitely preferred. As the committee also observed, legislation is only ever as good as the policy development underpinning it. Evidence is vital—a point just made by the noble Baroness, Lady Smith. As acknowledged, this Government are placing renewed importance on ensuring that their policies have a sound evidential base. The case was excellently made by my noble and learned friend Lord Mackay when he spoke about how the Children Act was improved by access to expert evidence and experienced social workers, and that legislation has endured the test of time as a result.

We are now placing renewed importance on ensuring that our policies have a sound evidence base. For example, the What Works Network, set up in 2015, provides government departments, Ministers and front-line professionals with independent assessment of the available evidence in specific policy areas. There is now a central team in the Cabinet Office that helps bring these findings to the attention of policymakers. In its first five years, the What Works centre has produced 288 evidence reviews, including 48 systematic reviews on a wide range of topics.

I was interested to read the complaints by the Tobacco Manufacturers’ Association—here I want to settle some old scores—that,

“the loss of in-house departmental expertise as a result of central government retrenchment … has led to a situation in which policy development is informally contracted out to other organisations”, leading to what it describes as,

“regulatory capture by politically-oriented and often taxpayer-funded campaign groups”,

That drew a hollow laugh for me as I recalled that when I was a Health Minister 40 years ago, public health measures to reduce the number of deaths caused by smoking, supported by the health department, were systematically blocked by the TMA’s lobbyists and its supporters in the House of Commons, but I must now move on to the serious issues addressed.

The committee welcomed the Government’s commitment to a greater use of Green and White Papers —a question asked by the noble Lord, Lord Tyler. The committee’s report notes that the Prime Minister recently indicated that,

“she would normally expect a Minister, before having legislation, to have gone through a Green Paper stage for discussion and then a White Paper stage to set out policy”.

I can tell the noble Lord, Lord Tyler, that we remain committed to that process and agree that it is a feature of good and proper policy development. However, time pressures to deliver legislation do not always make it possible.

Recent examples of such documents include the domestic abuse and online harms White Papers, and Green Papers on our integrated communities strategy and mental health provision for children and young people. Not only do those papers show the Government’s workings for their legislative proposals, they facilitate vital engagement with stakeholders, including parliamentarians. Many noble Lords have made the point that you cannot develop legislation in a vacuum, and the committee stressed the value of consultation, both formal and informal, as well as pre-legislative scrutiny by parliamentarians.

I was slightly surprised by what the noble Baroness, Lady Smith, just said about the regard that Ministers have for consultation. She has been a Minister, as have I. I have certainly paid attention to the results of consultation on policy areas for which I had responsibility, be it housing, transport or taxation. One advantage of modern technology is that it is now easier for government to reach stakeholders and the general public and engage them in consultation.

The noble Baroness asked me a number of detailed questions, and I will of course reply to her, but the report noted that the Government now collate all open consultations on a single webpage and that this is an important step in attracting extensive, diverse and expert input. This was a point raised by my noble friend Lord Dunlop. Our consultation principles stress the importance of targeting a full range of stakeholders. The committee notes that the department should consider targeting specific groups and suggests tailoring consultation to the needs and preferences of particular groups.

The committee rightly attached great importance to pre-legislative scrutiny. I reassure noble Lords that the Government hugely value Parliament’s scrutiny and the contribution it makes to the development of draft legislation. Noble Lords will be aware that in this Session, Bills that have undergone this scrutiny include the Parliamentary Buildings (Restoration and Renewal) Bill, the draft registration of overseas entities Bill and the draft domestic abuse Bill. So far this Session we have published 10 Bills in draft, nine of which have been scrutinised by either a Joint Committee or the relevant Select Committee in the other place; the 10th is the draft finance Bill. We hope to do even better. I thank all noble Lords who have been involved in the process of pre-legislative consultation. The hours of detailed scrutiny have led to the introduction of better legislation and an easier passage through both Houses.

A number of noble Lords mentioned post-legislative scrutiny. As noble Lords will know, departments produce post-legislative review memorandums for every Act three to six years after its commencement, as my noble friends Lord Norton and Lord Cormack mentioned. This is an initiative of the committee whose report we are discussing today and is now embedded practice. These documents provide a valuable opportunity to improve our process further by reflecting on whether legislation is operating as intended. If I could express a personal view, I am sorry that these memorandums, which the Government take very seriously, do not attract greater attention from those who follow the legislative process.

Finally, on this report, I would like to say a few words about the quality of legislation, an issue raised by my noble and learned friend Lord Mackay and my noble friend Lord Dunlop. The committee stressed the importance of clear, well-drafted and accessible legislation, to which the Government also attach great importance. We have come a long way in the clarity and accessibility of our legislation. My noble friend Lord Cope welcomed that improvement. The skilled lawyers within the OPC are constantly working to improve on this. For example, they have revised and updated their drafting guidance, strengthened their internal quality assurance processes and invested heavily in training new counsel, operating an apprenticeship model so that experience is shared. I place on record my thanks for their ongoing efforts to achieve this goal. Progress is still needed, particularly in the area of taxation, as mentioned by my noble friend Lord Cope.

Many noble Lords mentioned the work of the Law Commission, which has pointed to the particular value of reform and consolidation in the fields of immigration and sentencing law in England and Wales. Our commitment to tidying up our statutory landscape is reflected in the recent introduction of the Sentencing (Pre-consolidation Amendments) Bill, mentioned by my noble friend Lord Norton. This legislation is the first step towards making this complex area of law simpler, fairer and quicker to operate. First, we need to deal with the Bill; the sentencing code will be announced in due course. I note the suggestion that in this lull in parliamentary activity, we might use any spare capacity to make further progress with consolidation.

My noble friend Lord Cope mentioned the online statute book, which is delivered by the National Archives and is free to access. This is continually being updated to consolidate textual amendments into existing Acts. I am pleased to say that the update of primary legislation is almost completely up to date.

While we sometimes disagree on the content of legislation, our aspirations for the process are well aligned. We have come a long way in how we prepare and bring forward legislation, and remain committed to producing good law. As the committee’s fourth report set out, it is in everyone’s interest for our legislation to be evidence-based, influenced by diverse and expert input, scrutinised effectively and of the highest quality in drafting.

On skeleton Bills, the Government agree that Bills that contain vague powers because policy decisions have not yet been taken are usually not acceptable. However, a Bill setting out policy framework clearly, but using delegated powers to fill in details or implement part of it, may be justifiable in some cases.

Turning to the other report, on the delegation of powers, I pay tribute to my noble friend Lord Blencathra and his Delegated Powers and Regulatory Reform Committee. I take on board his warning about the Rivers Authorities and Land Drainage Bill, on which he has proposed summoning the author before his committee to discover exactly what is going on with it. The committee made a number of recommendations on the important role of delegated legislation in the legislative process. We have carefully considered the committee’s report and provided a detailed written response to each of its recommendations. As a Government, we very much endorse the committee’s emphasis on the valuable role we all play here in scrutinising delegated powers.

I will briefly set out some of the key points from the Government’s response. The noble and learned Lord, Lord Judge, expressed surprise that no statutory instruments had been rejected. I think he will find that quite a lot have been withdrawn and then resubmitted. This is probably a better process to go through than actually having them defeated. I know that some have been introduced, subsequently been found to be incorrect and a separate SI introduced to put them right. So it is not quite as black and white as the noble and learned Lord implied.

The committee observed that all involved in the legislative process have a responsibility to uphold what it referred to as “constitutional standards” in relation to delegated powers. The Government agree that a number of broad principles can be applied when considering delegations of power, although ultimately, it is for this House and the other place to consider whether a particular delegation is appropriate. It is impossible to prescribe a hard and fast set of rules to be applied uniformly to all delegations of power, as each delegation must be considered on its merits. In this respect, the Government agree with the committee’s observation that it is the constitutional obligation of Parliament to decide whether a proposed delegation of power is acceptable.

One of the committee’s key concerns is that delegated powers are increasingly being used by the Government for the purposes of legislating for policy and other major objectives, whereas they should be reserved for minor and technical matters. The Government agree that delegated powers should generally be reserved for prescribing matters of detail. I note my noble friend Lord Hunt of Wirral’s comment that it is not always possible to draw a clear dividing line between policy and detail. He takes the opposite view, and we will reflect on that particular point. I assure your Lordships that the Government always seek to ensure that the balance between what is contained within primary legislation and what is left for secondary is struck in an appropriate way.

A further concern expressed by the committee is the Government’s perceived use of broad, or even vague, powers on occasion. The Government agree that vague powers are to be avoided and we make every effort to ensure that proposed powers are formulated with a sufficient degree of precision and certainty. In any given case, it is for your Lordships to determine whether they are satisfied that the Government have justified the level of detail in a proposed power. As for broad powers, there may be some occasions where these are unavoidable. In these cases the Government aim to assist your Lordships by producing draft secondary legislation alongside the proposed power so that noble Lords can better assess how the power may be used in future.

The committee raised particular concerns over powers enabling the creation of criminal offences and the establishment of public bodies—a point made by the noble and learned Lord, Lord Judge. The Government agree that the cases for such powers are likely to be rare, although they may be appropriate occasionally if their use can be justified to your Lordships.

The committee also raised concerns over Henry VIII powers, and stressed the need for these to be fully justified. It is worth reading out what the committee said about Henry VIII powers. Henry VIII powers are,

“a departure from constitutional principle. Departures from constitutional principle should be contemplated only where a full and clear explanation and justification is provided”.

The Government agree that such powers should be taken only where they are strictly necessary. We are committed to providing a full and clear explanation to the House when taking such powers through information provided in the memo to the DPRRC. Each Henry VIII power needs to be considered individually on its merits. Sometimes, use of Henry VIII powers will produce a clearer legislative result than prescribing things in secondary legislation. Paragraph 19 of our response makes that point.

A number of noble Lords suggested that it should be possible to amend statutory instruments. That is not proposed by the committee, but the noble Baroness, Lady Smith, made a suggestion that the committee might like to reflect on—that it look again at the “take it or leave it” position of SIs. I would be interested in its reflections on that.

I am conscious that time is running out, but if I was asked to provide one example from my short time in your Lordships’ House—and to answer a question posed by my noble friend Lord Norton about what has changed—it is the effectiveness of scrutiny here. I would point to our recent debates about Henry VIII powers. I personally have no doubt that the trenchant criticism we have received, often from members of the Select Committee and usually from the noble and learned Lord, Lord Judge, has caused us to be more considered and cautious in our approach to utilising Henry VIII powers. I bear the scars of some of those debates and I believe that they have altered the terms of trade between primary and secondary legislation, and certainly business managers and the PBL will look carefully at any proposed Henry VIII powers even more so than they do at the moment. I think someone said that it was all a rubber stamp. Certainly, when taking these SIs through, the only thing that is stamped on is usually the Minister.

Finally, perhaps I might say a quick word to my noble friend Lord Trefgarne and thank the SLSC for the work it does. As he said, we will be providing a response to his report in due course, but we have gone further than any previous Government in being open and transparent about our plans regarding secondary legislation.

The Government’s responses to the reports have met with some headwind from noble Lords, and criticism of the Government is not unusual in Select Committee reports. However, the subject of these reports is different in some respects from others in that it focuses on a continuous process—namely, legislation—rather than, for example, a controversial policy decision that is difficult to reverse. To that extent, it is possible for the Government to take on board the gist of the criticisms in these reports, and indeed in our debate today, and seek to do better. That is what the Government propose to do and we will be incentivised in so doing by the threats from the noble Lords, Lord Tyler and Lord Beith, my noble friends Lord Hunt, Lord Cormack and Lord Norton, and the noble and learned Lord, Lord Judge, that the patience of your Lordships’ House is not unlimited. The Government have been warned.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative 7:21, 12 June 2019

My Lords, I am grateful to all those who have spoken in the debate, which has been a very good one indeed. The contributions have reinforced the recommendations made in the two reports. I listened carefully to what my noble friend Lord Young of Cookham said. I fear that he appeared to be justifying existing practices rather than explaining what the Government are now doing that they did not do before because of the committee’s reports—other than saying that the Government will listen carefully and, “Oops, we may be scared”—but in concrete terms there has been no significant change. In so far as he commended changes, it was those which have been made by the two Houses, not by the Government.

My noble friend will have noticed that the contributions to this debate have not been confined to those who serve on the Constitution Committee, which reflects the importance of the subject. This is not a discussion about some technical matters of interest only to those who are interested in procedure. We are discussing issues that affect the health of our political system. Law affects everyone and bad law can have devastating effects, so it is crucial that we get it right. It is in the Government’s own interest to ensure that Bills are well drafted so that they achieve their intended purpose. Being defensive about how they treat legislation is not to the benefit of government. I am sure that my noble friend the Minister will take on board all that has been said today and report back to his colleagues to ensure that action does indeed follow. I beg to move.

Motion agreed.