Legislation: Skeleton Bills and Delegated Powers - Motion to Take Note

– in the House of Lords at 4:21 pm on 6th January 2022.

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Baroness Cavendish of Little Venice:

Moved by Baroness Cavendish of Little Venice

That this House takes note of the increasing numbers of skeleton bills and the associated use of delegated powers within them.

Photo of Baroness Cavendish of Little Venice Baroness Cavendish of Little Venice Crossbench

My Lords, this is a debate about power and the damage done to ordinary people and democracy when the workings of power are hidden. In this country, laws which affect people’s lives are increasingly being made through delegated powers, secondary legislation and regulations which do not require the parliamentary scrutiny that voters expect. However, voters themselves are largely unaware because the shift in power towards the Executive is cloaked in technical language. The heading of our debate today would make most people’s eyes glaze over, and I thank all my noble friends for recognising its importance.

During a global pandemic, it is one thing to restrict people’s freedoms by pushing rules through quickly using procedural mechanisms which require minimal scrutiny by Parliament. Laws introducing the national lockdowns, limiting social gatherings and closing offices and schools were all made through public health regulations, the vast majority of which became law before being seen by Members of either House of Parliament. That is understandable—although I have been staggered to discover how keen Ministers have been to use this route. Over 100 such Covid regulations have been made in this way since March 2020. However, it is quite another thing to find that, beyond Covid, we are sleepwalking into a world where Governments increasingly rule by diktat, without even fully realising the cumulative effect of what can often seem to them like small tweaks made for efficiency.

Two excellent reports guide our debate today: the Secondary Legislation Scrutiny Committee report, Government by Diktat, and the report by the Delegated Powers and Regulatory Reform Committee, Democracy Denied. I am delighted to see that the noble Lords, Lord Blencathra and Lord Hodgson of Astley Abbotts, are both speaking in this debate, as are many other noble Lords who are much more expert than me.

Each of the reports contains a stark warning about a shift in power towards the Executive which has been occurring for decades. They describe in detail how Bills are often drafted only in outline, as skeletons

“so devoid of content they leave the real operation of the law to Ministers.”

Of course, the important detail is left to secondary legislation. They describe how Henry VIII powers let Ministers amend and even repeal Acts just by making regulations, and how Whitehall is using guidance and protocols as a form of disguised legislation, with legal effect but no oversight. According to these reports, hundreds of laws are being imposed on all of us, with no effective scrutiny and control by Parliament. This should be better known.

Exceptional powers are lent, not granted, to Governments by the legislature, in times of emergency. In such times, such powers should be returned in their entirety as fast as possible. Yet Governments of all stripes have increasingly sought to expand their power. In 2006, the Legislative and Regulatory Reform Bill sought to give Ministers the power to amend, repeal or replace any Act of Parliament by simply making an order. That was eventually withdrawn, after pushback from the House of Lords Constitution Committee. But during the financial crisis of 2008, the Banking Act gave the Treasury power to disapply any other relevant statute bearing on the Act, which was a pretty substantial power. In 2010, the Constitutional Reform and Governance Act allowed any Minister to make changes, again by ministerial order, as she or he considered appropriate. There are many other examples, which I am sure we will hear about in a moment.

Cynics might suggest that, when any Government have a large majority, they will get their way anyway, and so does this really matter? The principle of our parliamentary democracy is that Parliament’s core constitutional functions are to legislate and to hold the Government to account in order to protect individuals from the arbitrary exercise of power. One of the important aspects of secondary legislation, as you all know, is that, unlike Acts of Parliament, it is not subject to several stages of robust scrutiny; it is debated only once in each House, if at all, and it cannot be amended—it can only be accepted or rejected as a whole, and wholescale rejection is, unsurprisingly, something this House has been reluctant to do.

I am not alleging any grand conspiracy to subvert the constitution. While this Prime Minister has perhaps been keener than some others on Henry VIII clauses, he is by no means alone in wanting to expedite business. And I am not in any way comparing him to Henry VIII, although in writing this I did reflect that he has actually outdone Henry VIII in some ways: he has broken with Brussels—the new Rome—and he has had his third marriage blessed by the Catholic Church. But I know that he believes in the sovereignty of Parliament; after all, he led a withdrawal from the EU in order to reassert our parliamentary sovereignty.

The truth, I think, is more banal. It is that Whitehall increasingly finds it convenient to use these powers. I know from experience, as do many of us here, that Ministers are usually mightily relieved if they are told that they can get something done without the tedium of having to go back to Parliament. Who would not be relieved? When you are in government, it can feel unbelievably hard to get anything done at all.

But the cumulative effect is, I fear, corrosive. To quote the noble and learned Lord, Lord Judge, in a speech he made as Lord Chief Justice, if Whitehall gets into the habit of using Henry VIII clauses,

“we are … in … danger of becoming indifferent to them.”

This indifference, I fear, encourages Governments to be too casual. Shortly before Christmas, the Home Secretary added 18 pages to the Police, Crime, Sentencing and Courts Bill which had not been there when MPs voted on it in July, including on the right protest, where this Government’s stance seems to me to be approaching the Orwellian. If the Executive add things to Bills after MPs have voted, or if they use skeleton Bills to push the detail to later, ultimately Parliament is not really clear what it is being asked to approve, and that is dangerous for democracy.

The committees write that the use of delegated powers may also conceal a growing tendency to draft Bills before thinking through the underlying policy. I will refrain from pointing out examples of where that might have been the case—I am sure we all have our favourites—but we should not be putting Parliament in a situation where it is not clear what it is being asked to approve.

What is the common defence for using such powers? Necessity. We are always told the same thing: “We need to get this done quickly, and trust us, we will not abuse the power”. But as William Pitt once warned,

“Necessity is the plea for every infringement of human freedom.”

When scrutiny is limited, essential checks on executive power are lost. I often wonder why those in power today do not think more about what they are going to feel when the other lot get into power tomorrow.

I will leave it to others to outline the detailed recommendations made by the committees, but I very much support the suggestion that it would be useful for end-of-Session reports from both committees to form the basis of regular debates in the House on issues relating to the balance between primary and secondary legislation, the quality of legislation and the provision of explanatory materials.

I also wonder whether it would be possible to establish the equivalent of the Delegated Powers and Regulatory Reform Committee in the House of Commons, so that MPs can see the explanations for proposed delegations and get the opinion of a legal adviser with a higher profile. I say this partly because of the contacts I had with a number of Back-Benchers after I wrote about these issues a few months ago in the Financial Times. A number of MPs contacted me to say that they felt these were issues of real importance which they did not know enough about. If that is true, that is a gap in our democracy.

I will finish, if I may, with a personal reflection. Some years ago, I ran a campaign to expose miscarriages of justice that I believed were occurring in the family courts, which were taking children away from their families on the basis of evidence which, in my opinion, was not always sufficiently robust. My campaign resulted in the Government changing the law to open the family courts to more scrutiny. But to achieve that, we had to fight our way through thickets of legalese and rafts of procedural language which were preventing ordinary people seeing what was being done in their name. I think we face a similar but much bigger version of this in the issues we are debating today, and I hope that we can find ways to communicate their importance to the public.

In conclusion, laws affect our lives and rights. They should not be made by bypassing the very institutions which are supposed to be a check on power. We need a fundamental reset in the culture of both Ministers and senior officials, who should in fact be the gatekeepers of democracy. I beg to move.

Photo of Lord Blencathra Lord Blencathra Chair, Delegated Powers and Regulatory Reform Committee, Chair, Delegated Powers and Regulatory Reform Committee 4:31 pm, 6th January 2022

My Lords, I warmly congratulate the noble Baroness on setting out the case so thoroughly and eloquently on the inappropriate delegated powers that skeleton Bills contain.

In December, the Secondary Legislation Scrutiny Committee and the Delegated Powers Committee published joint reports heavily criticising skeleton Bills. Let us be clear: our criticism was not an attack on this current Government alone, since the abuses of delegated legislation have been growing under all Governments for the last 30 or 40 years—not just since Brexit or Covid.

What do I mean by abuses? Our Delegated Powers Committee report listed four main concerns, including: first, skeleton Bills, which we are debating today; secondly, the growing predilection of departments to stick Henry VIII clauses on to every Bill, just in case it might be convenient in the future; and, thirdly, the sub-delegation of legislative powers. These are laws made not even by Ministers as secondary legislation but by people or bodies who have been granted the powers to do so. These tertiary rules can have a big impact on citizens and are legally enforceable.

We will have a perfect example of this before us on Monday, when the Home Office will have to table an urgent amendment to correct unlawful guidance produced by the College of Policing. Our report on the police Bill criticised the fact that the College of Policing is not a statutory body but a private limited company, but the dear old Home Office had been merrily shovelling to it powers to invent statutory guidance. I have tabled an amendment to say that all such guidance should be held in abeyance until the college has been approved by Parliament, since its guidance could be illegal. Well, what do you know? The Court of Appeal ruled on Christmas Eve that its guidance on placing 110,000 innocent people on a criminal records list for non-crime hate crime was unlawful, and the Home Office tabled an amendment just yesterday to rectify it. Both Houses of Parliament will now have a chance to debate it for the first time. How much more possibly illegal guidance is being manufactured by third parties which will never be exposed unless it is challenged in court?

Our fourth concern was disguised legislation. Guidance which is advisory need not be approved by Parliament, but so much of it now is guidance which one “must have regard to”. While it is not technically mandatory, our experience is that everyone treats it as such because the issuing body tells them that it is compulsory.

A year ago, we had an excellent little Bill on school uniforms which permitted the Department for Education to issue guidance. I moved an amendment to say that the guidance should be subject to the negative procedure, but the official answer was—I paraphrase slightly—that it was merely advisory. The department had issued lots of guidance every year and had gotten away with it not being checked by Parliament before, so why should it start now? There was also the usual answer that the department would consult all the relevant experts and stakeholders, and that we parliamentarians should not worry our pretty little heads about it.

However, noble Lords ought to see the press release that the department issued in November with the advisory guidance. It is headlined:

“Schools will need to follow statutory guidance” and talks about “new legally-binding guidance” that

“schools will be required to” follow and saying that the DfE

“guidance means schools … must ensure” and so on. That does not sound advisory to me. This guidance should have been seen by Parliament, even just under the negative procedure, but drafters of Bills have become wise to the fact that we and this House will criticise things called guidance. So they now use disguised terminology, calling guidance “determinations”, “protocols”, “directions”, “arrangements”—even a “public notice”. What a wonderful way to make laws: do not bother with MPs and Peers, just publish a notice in the London Gazette and, hey presto, new rules.

I have deliberately covered more issues than just skeleton bills because these are part of a whole menu of thoroughly inappropriate delegations that should have no place in a democracy. Of course every democratic Government in the world needs secondary legislation if they are to work, but the nature and extent of that secondary legislation is what matters.

I conclude by saying to my noble friend and all government Ministers that not a single one of our recommendations would prevent any Government passing their full legislative and political programme. It would simply mean that both Houses of Parliament would have the chance to debate, if we wished, a little more secondary legislation than we do now. How can any Government object to that?

Photo of Baroness Andrews Baroness Andrews Chair, Common Frameworks Scrutiny Committee, Chair, Common Frameworks Scrutiny Committee 4:36 pm, 6th January 2022

My Lords, I congratulate the noble Baroness, Lady Cavendish, on her choice of debate and the brilliant way in which she introduced it. As a member of the DPRRC, it is a particular pleasure to follow our chair, the noble Lord, Lord Blencathra—the Braveheart who led us into this important report alongside his colleague, the noble Lord, Lord Hodgson of Astley Abbotts. I am sure the Minister knows how formidable a duo he faces.

What is different about the two reports at the heart of this debate is not just the arresting language or, indeed, the fact that we have a pincer movement on Westminster and Whitehall; it is the nature of the analysis and the depth of the recommendations, which will go beyond this Chamber. This is about context.

Take the titles of the reports, for a start: Democracy Denied? and Government by Diktat. One might be forgiven for thinking that these were the product of some raving pamphleteer but no, they are not. They come from the two most senior scrutiny committees in the House, and the language is justified. They express with little reservation all the frustration that we in this House have felt for a long time at the growing contempt for Parliament, which has been accelerated by the expediency of Brexit, the concentration of ministerial powers, the interpretation of “emergency” in terms of Covid and the stranding of Parliament.

The reports confront this challenge holistically and head on. They take the long view: they look backwards over a century of accumulated frustration but they also look forward. If Parliament is to reassert its power, it will be for the long term. Over the years, the DPRRC has won many battles on the Floor of this House. What we have been less successful at is changing and challenging habits, which these reports do. What should be exceptional has become business as usual, whether it is skeleton Bills or delegated powers.

The prescription set out in these reports goes far beyond “Chaps should do better”. It challenges the Government in principle and in practice to assert and govern by the basic principle that legislation is the servant of parliamentary democracy. In that context, the state we are in is not an extension of a game of cat and mouse between Ministers and Parliament. The reports document a structural shift in both the culture and strategy of the Government and Whitehall—that is, a culture that says that anything goes, anything can be tried on and any excuse can be offered and a strategy through which Ministers can, without restraint, hide in delegated legislation aspects of policy that need to be open to scrutiny and challenge. Skeleton Bills, Henry VIII powers and guidance rather than regulation are defended on the grounds of urgency and flexibility, no matter how flimsy or, frankly, nonsensical the argument. It is a creative culture, as we have seen in the raft of inventive ways, language, protocols, directions and so on in the form of disguised legislation.

The point is that this transfers powers to people and institutions that are well out of Parliament’s sight, sometimes in contested areas when the police are asked to do something by guidance that should have been regulation. The impact of this secondary legislation is the sharp end of the law: the point at which perverse consequences that could have been cleared away become real and make a real difference to people.

Sometimes it is argued that the Government do not understand what they are doing—of course they understand. Why else would they have introduced attempts to prorogue Parliament, or indeed to strip out treaty obligations by law? It marches on: the Health and Care Bill has so much delegated legislation and, with 50% of it beyond parliamentary control, the committee had to weigh it rather than analyse it.

We can no longer rely on the good chaps reasserting control. A reset means putting the Cabinet Office on the line so that its own guidance insists that the making of all legislation and the behaviour of Ministers is subject to the explicit principle of parliamentary democracy. It means identifying skeleton Bills as the outlaw Bills that they are and treating them as such, and it means ensuring that every civil servant assumes that Henry VIII powers can expect to be constrained by regulation.

It is time that we reopened the whole debate over the nature of secondary legislation and the sole nuclear option open to us. We ought to revisit this because it disables us as a Parliament. If we intend to strengthen Parliament in future, we have an obligation now to revisit that.

Photo of Baroness Scott of Bybrook Baroness Scott of Bybrook Baroness in Waiting (HM Household) (Whip)

May I remind noble Lords that the limit for speaking is four minutes? We have a long list of speakers tonight.

Photo of Lord Bridges of Headley Lord Bridges of Headley Chair, Finance Bill Sub-Committee, Chair, Finance Bill Sub-Committee 4:41 pm, 6th January 2022

My Lords, I start by congratulating the noble Baroness, Lady Cavendish, on securing this debate and her masterful speech, as well as the two committees on their excellent, hard-hitting reports.

I am conscious that, unlike many speaking today, I am not a constitutional expert, nor am I a lawyer. That said, what I do know is that although much of what we are talking about may sound abstract, this debate —about the power of Parliament versus the Executive and the processes that underpin our democracy—has a direct impact on all our lives. If those processes that underpin scrutiny and accountability are not cherished and nurtured, and the Executive are allowed to chip away at them, the freedoms that we all take for granted risk being eroded. My concern is that this is happening thanks to a subtle but profound shift in the culture of government over the last 30 years—a shift that is having a big impact on process and, therefore, on democracy itself.

Politicians’ lax approach to Cabinet government has led to sofa government and the rise in the power of unaccountable special advisers. The 24-hour media cycle, turbocharged by social media, fuels hysterical calls that something must be done to tackle a problem or Ministers’ demands for an eye-catching initiative. Process, precedent, accountability and scrutiny are all seen as mere irritants that get in the way of action.

Having worked in No. 10—many moons ago with my noble friend the Minister and more recently as a Minister—I know only too well what happens. To manage a crisis on the evening news or a Twitter storm, a press release is cobbled together, which spawns a piece of legislation barely longer than the press release itself, which then gives rise to a skeleton Bill full of delegated powers. This creates the issues that these excellent reports touched on and which the First Parliamentary Counsel delicately mentioned in her evidence when she talked about the

“practical or political drivers to bringing forward the legislation at a particular time” and the “great demand for legislation”.

As has just been said, delegated powers are necessary. But we now have a culture in which Ministers either push for, or allow, half-baked legislation—not, as the Prime Minister might call it, “oven-ready” legislation—to be brought to Parliament. The fact that Mr Rees-Mogg could find, in the mountain of Acts passed, only one example of legislation—the Cities and Local Government Devolution Act—to justify skeleton Bills makes me conclude that we must act to stop this culture of creating more skeleton bills and turning Parliament into a graveyard of democracy.

Cultural change take years, but processes can be changed quickly. Let me ask my noble friend—he is an old friend who I know is a steadfast defender of parliamentary democracy—a simple question: does he agree that it should be made explicitly clear to Ministers and the Civil Service that skeleton Bills are, in the words of the report, “rarely justifiable” and, if so, that this is written explicitly into the Cabinet Office’s Guide to Making Legislation? That would begin to put the genie back in the bottle.

Photo of Baroness Thomas of Winchester Baroness Thomas of Winchester Liberal Democrat 4:45 pm, 6th January 2022

My Lords, I shall speak in shorthand in this very welcome debate. As a former chair of the Delegated Powers Committee, I am familiar with this battleground, and I have the scars to prove it, particularly from the Public Bodies Bill.

First, as the noble Lord, Lord Bridges, said, the practice of bringing framework Bills to Parliament must be discouraged from the outset, however tempted Governments are to use them. Secondly, the House must have agreed procedures to swing into action if there are inappropriate delegations. I endorse the “scrutiny reserve” plan in Democracy Denied?, but we must beware: no Government will agree to this willingly if it means that legislation will be held up. So we must watch out for that.

Before closing, I want to say that I hope that the House will never give up its priceless unfettered power over secondary legislation, even if it is hardly ever used.

Photo of Lord Judge Lord Judge Chair, Sentencing (Pre-consolidation Amendments) Bill [HL] Special Public Bill Committee, Chair, Sentencing (Pre-consolidation Amendments) Bill [HL] Special Public Bill Committee, Convenor of the Crossbench Peers 4:47 pm, 6th January 2022

I do not feel like following any of those speakers; they have said everything that I want to say. It is awfully tempting to sit down, but I should just mention one or two things.

The noble Baroness, Lady Cavendish, referred to something that I said when I was Lord Chief Justice. It was a political speech—nothing to do with party politics—and I addressed the issue of Henry VIII clauses. That was more than a decade ago. The moral of the story is that judges should not interfere in the political processes—because no one took the slightest bit of notice of what I had to say. Indeed, the response was the opposite: the departments invented a new button on their computers that said “Henry VIII” on it, and every piece of legislation since I spoke has had it pressed and Henry VIII drawn into it. So I have given the Red Bull treatment to Henry VIII and the corresponding treatment for somnolence—I do not know what the right pill is for that—so we just go on producing delegated legislation. It is more than 10 years since I spoke, and has the House of Commons rejected a single piece of delegated legislation? No. I am sure that every piece of delegated legislation that we have had has been sublimely wise, but the House of Commons has not rejected a piece of delegated legislation since 1979—1979, for heaven’s sake—when thousands and thousands of pages, in small print, are sent out to us every year, telling us all how we should live.

I go back to the time when Henry VIII was first trying to get these powers. It is an interesting story. This Parliament had given him the power to decide that he was the Pope—or the head of the Church in England—who would succeed him, that he could bring down the monasteries and that he could do anything that he liked. But the one thing that it drew the line at is something that we have been pathetic at. It said: “No, we will not give you the power to amend our statutes.” Here we are doing it 400 years later.

It is sometimes said that Thomas Cromwell fell because he introduced Anne of Cleves into Henry VIII’s bed and she could not quite arouse his—whatever you call it—interest. I must say, nobody ever asked her what she thought about him. But that is not the whole story. When I retire, I will launch a piece of research which will demonstrate that Thomas Cromwell fell because he did not produce for the king the power that the king wanted: absolute power. If he had had time—his head came off too quickly—he would have thought of skeleton Bills, guidance, protocols, and so on. However, he did not have time. However, if we turn to Henry VIII for inspiration and to Thomas Cromwell for further inspiration, we are running up a very strange path.

I have three suggestions. First, let us never ever pass legislation like Clauses 55 and 56 of the current police Bill, which enable the Secretary of State to define what the Bill means by “serious disruption” after it has been enacted. We should reject any and every Henry VIII clause until the Minister identifies the specific areas it is intended to address and then we should limit the Henry VIII power to a power to amend specific clauses in the instant Bill, not any statutory provision in any Bill past and to come. Finally, on statutory instruments, we should at least have the power to have a process to say, “We agree with 99 but number 100 we do not want.”

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Chair, Secondary Legislation Scrutiny Committee, Chair, Secondary Legislation Scrutiny Committee 4:51 pm, 6th January 2022

My Lords, I add my thanks to the noble Baroness for introducing this important debate. When I wrote to her, I said that this was not an issue that would have them dancing in the saloon bar of the Dog and Duck but that, nevertheless, it would affect their lives even if they did not know about it.

I have the privilege—it is a privilege—to chair the Secondary Legislation Scrutiny Committee of your Lordships’ House. As my noble friend Lord Blencathra has explained, we have been working together to introduce these two reports. I will not repeat what we said in our SLSC report, which is entitled Government by Diktat, except to thank my noble friend Lord Sherbourne, who we will hear from in a minute, as the progenitor or author of the word “diktat”, which has resonated so well in the House and in the country. However, I will quickly remind the House about one thing. Last year, the SLSC looked at 901 pieces of legislation—every law binding on every citizen—passed with, I think we can all agree, a very inadequate level of scrutiny.

The reaction to our two reports was positive; indeed, the number of noble Lords who wish to speak this afternoon shows that we have struck a chord. In the last couple of minutes that I have I will turn the guns forward and decide what we could do to remedy and improve the situation. I have two suggestions. First, to pick up on the point the noble Baroness made, we have to discuss and make common cause with the Commons about how we might improve the situation. Any change will inevitably restrict the power of the Government, and no Government will like that. Many reasons will be given why these proposals are worthy but not necessary, and I am sure we will hear a great many of them from my noble friend when he winds up shortly. Without being unduly cynical, I hope that the House will forgive me if I say that I think the enthusiasm from Her Majesty’s loyal Opposition, always with an eye on the future, may be only limited, and that tears may be shed but they will be crocodile tears. The killer blow is the allegation—the accusation—that this is an attempt by the unelected Lords to tell the elected Commons how to do their job better. It is not a fair accusation or allegation; this is about the balance of power between the legislature and the Executive—between the two Houses of Parliament and the Government.

My second suggestion is perhaps slightly more radical. We in Parliament might be able to agree that the pace of change in our modern society is so fast that the more stately rate of change and passage of primary legislation is possibly too slow to keep up with events. We may have to accept that, in future, more fundamental changes will have to be contained in regulation. If we were to accept that, the Executive, the Government, might in return accept that new and better methods of scrutinising these fundamental changes could be introduced. This would not need wholesale reform but could be focused on improving methods of scrutiny of regulations that are of high statutory significance. If the Government could bring themselves to accept that as a first step, we would be on the way to improving a situation that, as I think every Member of the House agrees, is unsatisfactory.

Photo of Lord Rooker Lord Rooker Labour 4:55 pm, 6th January 2022

My Lords, I too congratulate the noble Baroness. I much enjoy her FT Weekend pieces and I have detected a major change in tone in the last three or four months. I used New Year’s Eve to read the report from the Delegated Powers and Regulatory Reform Committee cover to cover, and I admit to feeling quite bad about it—bad about my sheer ignorance of what had been happening to the imbalance between the Executive and Parliament. Of course, I was aware of the odd complaint, but I confess to being sadly unaware of the wholesale undermining of Parliament’s role. Built-in checks and balances have been dismantled on a huge scale.

Others have been seized of the issue, as paragraph 32 makes clear, such as the Wakeham commission in 2000 and the Leader’s Group in 2011. Over the years, those involved—I do not know who they are—have almost acted as a conspiracy by seeking to make the issue one between the elected House and this unelected House. Having served in both Houses for over 20 years and having been a Minister in both, I can fairly say that that is not the issue. The issue is indeed the relationship between the Executive and Parliament. I have been at the same place as the noble Lord, Lord Bridges, on emergencies and everything else in both Houses.

It also seems sensible to ensure that Parliament must never be in ignorance of the laws passed in its name. The report highlights the disturbing new trends in detail. As disguised law goes, I am familiar with some of the terms—“mandatory guidance”, “to have regard to”, powers to determine “arrangements” and “protocol”—but I had never heard of “public notice”. That was a new one, the consequences of it anyway. All combine to camouflage legislation.

The most worrying aspect of the discussion is tertiary legislation. That appears deadly. We have indeed delegated far too much to the Executive. I do not want this to be misunderstood, but I deeply regret that parliamentary counsel has acquiesced to all this. I have never picked up bad vibrations from parliamentary counsel to any of this. I know they are government lawyers, but parliamentary counsel is their title.

I have two points to make. Sitting days for Parliament are not mentioned. I think they should be controlled by Parliament, via the Speaker and the Lord Speaker, not the Government. If this were the case, government using the excuse of emergency very fast legislation fixed by Ministers without recourse to Parliament because it is not sitting or is not due to sit could be avoided. If we decide to sit as and when necessary, that would be one excuse out the door.

There is a strong case for a targeted and limited ability of Parliament to amend some SIs. “Targeted and limited” is a phrase I picked up during the discussion on one of the breaches of international law in the other place. It would be targeted and limited; there is no way we would go for wholesale. That should be looked at in detail.

I am interested in the future and in solutions. Chapter 5 is crucial. Some of the recommendations in chapter 5 are for the House, not the Government, so there is no excuse that the Government will not buy them. For two or three key matters, the House should make the decision. That is where the power lies, so that is really important. Scrutiny reserve is the key recommendation. I do not want to put a hierarchy on them, but that seems to be the nuclear option. The fact is that they should all be accepted.

Photo of Lord German Lord German Liberal Democrat 4:59 pm, 6th January 2022

My Lords, congratulations to the noble Baroness, Lady Cavendish, and amen to everything that has been said. I shall concentrate on the antidote to the legislative creep that has been described so well by earlier speakers.

If we are to continue to get skeleton Bills and skeleton clauses—or, as the Government like to call them, enabling Bills and enabling clauses—we must have better provision for examining secondary legislation. The important balance is between the legislature and the Executive. That is the cornerstone of a functioning democracy. Together with the judiciary, the balance and independence of each are critical for them to truly act as the representatives of our people.

I deprecate the use of delegated powers as a substitute for imperfect policy-making. I want to look at the issue of electric scooters. The delegated power that gave electric scooters the right to exist in this country only if they were from a hire company, they could drive at no more than 15.5 mph, and anyone using them had to have a driving licence has been outshone by the over 100,000 electric scooters operated illegally across this country. In fact, I was driving at 30 mph down a 30 mph road and was overtaken by an electric scooter. So noble Lords can imagine that this is an example of what delegated power is dealing with, as a substitute for imperfect policy-making.

Looking at the problem from the other end of the telescope, what can be done to achieve a proper role for the legislature in retaining its crucial job of scrutiny and ensuring that our laws are fit for purpose? There are three ways outlined in the excellent reports that the two committees have produced. One is an enhanced procedure allowing Parliament or committees of the two Houses to comment on a draft instrument before the final form is laid. The second is to amend the Statutory Instruments Act 1946 to allow enhanced scrutiny and amendments to be made to secondary legislation. The third is to require Ministers to undertake consultation on any secondary legislation derived from skeletal clauses or Bills before bringing them before Parliament, and for those pieces of legislation to introduce and include a report on how the findings of the consultation have been taken into account.

I would like to add a fourth: a flagging mechanism where either House could indicate that a piece of secondary legislation deriving from a skeletal Bill or clause was unfit for purpose or failing to meet its declared intention. The flag would require the Government to temporarily withdraw the instrument, look at it again and produce a revised version.

I am not wedded to any of those four proposals or any combination of them, and there may well be more, but, in the light of the fundamental concerns raised both in this debate and in the two reports to the House, there is an urgent need for action by both Houses, preferably together, in order to inquire into the changes that we need to undertake to fulfil our legislative function and to recommend a way forward for Parliament.

It is genuinely Parliament’s role to investigate this. It is our role as a legislature, which is gradually being eroded. As a first step, would it be possible for both Houses to co-create a committee or an inquiry to look at these matters and bring forward suggestions to both Houses on how we could improve the situation? It is clear that the creep cannot continue, but both Houses together can make it stop.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct, Chair, Sub-Committee on Lords' Conduct 5:03 pm, 6th January 2022

My Lords, I shall focus on a single provision, Section 10 of the Human Rights Act 1998, a classic Henry VIII provision. In essence, it provides that by ministerial order you can amend legislation found incompatible with our convention obligations. Last year, this House in fact sanctioned a remedial order amending Section 9 of the Human Rights Act by allowing extended circumstances in which damages can be awarded in respect of a judicial act.

A Policy Exchange paper at the time questioned both the vires of the order and, more forcefully and persuasively perhaps, its propriety. More recently, in a much more comprehensive report addressing a whole range of suggested amendments to the Human Rights Act, Policy Exchange returned to Section 10, advocating that future legislative change should be secured by primary legislation and certainly that Section 10 should not be used to amend the Human Rights Act itself.

Section 10 has also been the subject of consideration by the Gross committee in its recent independent review of the entire Human Rights Act, and on this issue, its report recommended, first, amending Section 10 to clarify that remedial orders cannot be used to amend the Act itself and, secondly,

“potentially better use of the JCHR powers of scrutiny” of the remedial order-making power. I should just note that the JCHR, for which in other important respects, the Gross committee also recommends an enhanced safeguarding role under the Human Rights Act, at the time of the 2020 amendment to Section 9, failed not merely to address the vires argument but even to draw the ministerial order to the special attention of the House on the basis, as heralded in its 2001 statement of principle, that

“it appears to make unusual or unexpected use” of powers conferred by the statute under which it is made.

Coming, finally, to the MoJ consultation paper just issued on the reform of the Human Rights Act, one is heartened to note passages which, as the paper itself notes, go further even than the Gross committee. It says this:

“There is a case for retaining remedial orders under the urgent procedure only, as a means of addressing urgent (and compelling) cases where leaving the law unamended, even for a short period, could be damaging.”

And then there are these important words:

“This must be weighed, however, against the constitutional arguments against executive legislation, which may suggest removing the power entirely.”

How good it is to see in a government document—issued, no doubt, under the aegis of Mr Raab—so plain a recognition of the constitutional argument against executive legislation. We should focus on that.

Photo of Lord Sherbourne of Didsbury Lord Sherbourne of Didsbury Conservative 5:07 pm, 6th January 2022

My Lords, as a member of the Secondary Legislation Scrutiny Committee, I have seen us comment on thousands and thousands of SIs, and we have been very fortunate to have a brilliant team of advisers and clerks to help us do our work, so I am not surprised that, recently, a House of Commons report praised the Lords for the scrutiny and expertise that they bring to SIs.

However, when it praised us for scrutinising SIs, I asked myself what they mean by scrutinising. Imagine I am doing a deal and my lawyer says to me, “I’d like you to scrutinise the draft contract.” I look at it and say, “I have now studied it very carefully, but I do not like certain parts of it.” The lawyer says, “By scrutiny, I simply meant comment on it—you can’t actually change it; you cannot reject it; it is a fait accompli.” That is our position with SIs in this place. Except on the rarest occasions, that is what we do in the House of Lords when we scrutinise SIs. We pass thousands and thousands of them unamended; we are not allowed to amend them and, by convention, we are duty bound to pass them.

As other noble Lords have said, these SIs can impose very detailed and onerous restrictions and burdens on the day-to-day life of individuals, businesses and organisations. They often come into force immediately, and Parliament just waves them through compliantly. This is why we called it Government by Diktat, and it is no wonder that the Government are trigger-happy with SIs.

You might ask, “Why doesn’t Parliament reject them from time to time?” A Government with a majority in the House of Commons will always get its way, and in this House, if we were to reject an SI, as we cannot amend it, we would kill it stone dead, and we are understandably very reluctant to defy the elected Chamber when we are unelected.

As the noble Lord, Lord German, said, we cannot expect the Government to change their ways. We will go on having an avalanche of SIs, skeleton Bills and Henry VIII powers. It is Parliament that has to look at how to change our ways. We will have to have a really serious look, either through a Joint Committee or through our procedure committees, but the only way we will change the way we deal with SIs is for Parliament to grasp this nettle.

Photo of Lord Davies of Brixton Lord Davies of Brixton Labour 5:10 pm, 6th January 2022

My Lords, this is an important issue in terms of controlling the Executive and establishing the role for your Lordships’ House. I very much welcome the fact that this debate has been introduced by the noble Baroness. It refers specifically to skeleton Bills, but by incorporating the two committee reports the debate is somewhat wider. I do not make any apology for that.

I will use my brief time to highlight one specific issue identified by the Delegated Powers and Regulatory Reform Committee: that of the recent growth in the use of what the committee describes as “disguised legislative instruments”. This is dealt with in paragraphs 92 to 120 of its report. The committee provides various examples of this trend, but the common factor is that Ministers are being given the power to supplement primary legislation with what is, in effect, disguised legislation: instruments that are legislative in effect but not subject to parliamentary oversight. Examples have been quoted. The committee refers to

“powers to make a ‘determination’ … to determine ‘arrangements’ … to issue a ‘code of practice’, a ‘protocol’ or a ‘public notice’”, and my major concern, to issue “directions”. The committee concluded that the

“the multiplicity of disguised legislative instruments is confusing to Parliament and to the public, and does not … promote the good law principles of law that is clear and accessible.”

The use of Treasury and other departmental directions in the context of the legislation on public service pension schemes sparked my concern, but I have subsequently come to understand that it is a wider problem, as highlighted in paragraph 101 of the committee’s report. It arises from Section 12 of the Public Service Pensions Act 2013, which provides a mechanism for what is called the cost cap as a limit on employer contributions. It provides that the cost cap should be determined in accordance with Treasury directions.

We have just had the McCloud and Sargeant case, which the Government lost, and there is a very expensive remedy. The Government have decided, by using directions, that the cost within the cost control mechanism should be borne by the members. I do not wish to argue the case for or against that decision, but it is manifestly a matter of public policy, where Parliament should have appropriate oversight over such an important decision.

Although we need to understand that there is not a hierarchy of significance in terms of different forms of legislation, some directions have a bigger and more immediate impact on individuals, their income and benefits than some pieces of legislation. Yet we spend a lot of time on the legislation and do not even get to see the directions. This is surely wrong. I think that is in accordance with the committee’s conclusions. It sets out a simple principle:

“In the absence of convincing reasons to the contrary”, these devices “should not be used.” Will the Minister let us know whether he shares the concern about disguised legislation? If so, what steps will be taken to limit its use?

Photo of Viscount Eccles Viscount Eccles Conservative 5:14 pm, 6th January 2022

My Lords, I think we are approaching some form of consensus but the problem is: what does one do when one has achieved that consensus? Many years ago, I was on the Merits Committee and subsequently on the Delegated Powers Committee. We experienced many of the issues that have been highlighted in these two excellent reports. It was on those committees that I discovered the depth of skill and professionalism of the staff of this House. They were a mine of historical and current information. They told us many of the things that the committees are being told again today.

However, it has always been the case that Executives want to make their lives easier by limiting the powers of legislatures. As life gets more complicated, there is no chance at all that that is going to go away. After all, everybody would like to have a weekend off every now and again. Although sometimes I think that the stress on Parliament is exaggerated, it is nevertheless true that there is a problem of parliamentary time.

One can have all the good ideas about what should happen. I well remember coming out of a trustees meeting at Kew, where we had seven members of the Royal Society on the board. They had extremely good ideas and the chief executive of what was then SmithKline Beecham said to me afterwards, “John, we need to remember that although we have a lot of people who have very bright ideas with which we agree, we will be lucky if we can find one or possibly two people who can carry them out.”

Therefore, the challenge to this House is: what can we do about this complicated and unsatisfactory situation? We have to start from a position where we do not have much leverage, and that is never a comfortable position to be in when one is in negotiation. I agree with my noble friend Lord Hodgson of Astley Abbotts that we need to limit our ambitions to something we believe is negotiable and for which we may have the leverage. That would be—although it entails a lot more work—an increase in our ability to scrutinise, and practice of scrutinising, secondary legislation. That is probably the most practical road to go down.

I should like to share just one memory. I was on the Merits Committee when we threw out the statutory instrument to set up a grand casino in Manchester. So that has been done and there is no reason why the House of Lords should not, given suitable debate on the detail, go down that path again. However, as has been said by several Members, our relationship with the Back Benches of the House of Commons will also be the clue as to whether we can get there and improve this situation.

Photo of Viscount Stansgate Viscount Stansgate Labour 5:18 pm, 6th January 2022

My Lords, I thank the noble Baroness, Lady Cavendish, for securing this debate and for the excellent way in which she introduced it. I sense that the mood of the House very much agrees with many of the arguments she made. I am conscious, too, that many Members with great expertise are taking part—we have heard from some of them already—so, in the brief time I have I can make only a few points.

First, secondary legislation is absolutely essential to the running of a modern Government. I fully expect the Minister to emphasise that when he replies from the Dispatch Box, but process and procedure still matter, and we are having this debate because it is the abuse of secondary legislation that is its subject. When the Minister replies, perhaps he could be more explicit about the criteria by which the current Government deem that abuse to be justifiable in some cases and not in others.

It has been at least three years since the Constitution Committee of your Lordships’ House first identified skeleton Bills as a recurring problem, and the history of this issue goes back many years. What we heard today made me feel that not only would I have liked Henry VIII to have taken part, but Thomas Cromwell would have been an advantage.

Just before Christmas, I went to speak to a secondary school. I deliberately brought with me these two excellent reports, because I wanted to make sure that those sixth-formers discussing the British constitution were aware that it is not solely the rose-tinted version of parliamentary accountability so often portrayed. They were very intelligent sixth-formers, and I wanted them to know that parliamentary scrutiny of the Executive is creaking at the seams—that is putting it mildly.

For how much longer can we assert that Governments are effectively held to account by this mother of Parliaments? For how much longer can we promote our current system as a role model? The direction of travel is more than worrying. Parliament is losing power to the Executive, and power in the Executive is gradually being concentrated in Downing Street. Within Whitehall, power can pass from elected Ministers to unelected civil servants. Skeleton Bills benefit the Whitehall machine in so far as the details filled in later give the Civil Service, rather than Ministers, more of the opportunity to shape and preside over the detail. I note with great interest what the noble Lord, Lord Blencathra, said about the new nomenclature used to describe the many different ways in which secondary legislation is used.

Meanwhile, of course, Ministers are not subject to the scrutiny they should be at the Dispatch Box. If something goes wrong, which occasionally it does, the chances are that the Ministers originally responsible have moved on and hence escape the kind of scrutiny that taking a substantial Bill through Parliament would entail.

I was particularly interested in one point in the Financial Times article by the noble Baroness, Lady Cavendish: that the Government do not seem to wonder what others might use these powers they are creating for. It reminded me of 1972 and the Heath Government, who passed the Industry Act in that year. For a free-market Government, they introduced considerable powers over industry. I remember it well; it was described at the time as “Heath’s spadework for socialism”. I mention it now only to emphasise the point that the noble Baroness made to the government Benches: one day they may feel slightly differently about what is being done, because there are precedents that they might come to regret.

When it comes to the remedy, I say only—as my time is up—that it is clearly time to consider our power to amend statutory instruments. I fully endorse the excellent recommendations made and very much hope that fair-minded Members on all sides of the House will agree that that is one way forward: not the wholesale rejection of SIs but selected amendments.

Photo of Baroness D'Souza Baroness D'Souza Crossbench 5:22 pm, 6th January 2022

My Lords, the following blunt phrases crop up repeatedly in the authoritative committee reports Democracy Denied? and Government by Diktat:

“a critical moment has been reached … signing a legislative blank cheque … should be used only in the most exceptional circumstances … striking and disturbing recent developments … egregious erosion of democratic accountability … wide and ill-defined delegated powers … The New Despotism … disguised legislative instruments”.

These phrases, and those such as

“most draconian powers ever seen in peacetime”, indicate disquiet at the increasing use of skeleton Bills where the meat, both policy and technical, is supplied by means of secondary legislation, including Henry VIII powers, statutory instruments, tertiary legislation and guidance.

The recent upsurge in concern about the relationship between the Government and the Executive is by no means a new phenomenon. Parliamentarians were voicing similar concerns in the Donoughmore committee in 1932, the Jellicoe committee in 1992 and ever since in various articles, debates and lectures, notably the lecture on Henry VIII powers given by the noble and learned Lord, Lord Judge, at King’s College in 2014.

Clearly, there is a place for delegated legislation, but the democratic problem arises when Governments seek to push policies into secondary legislation, thereby depriving them of proper, sustained debate and amendment. This happened during the passage of the Brexit Bill and with the emergency Covid legislation. In recent years the Government have thus exercised an authority over lawmaking that goes well beyond the filling in of technical and administrative gaps, and strays into issues of policy and principle.

It has become a habit, and one which we in this House are reluctant to confront; we all remember to our cost the Strathclyde report of 2015, following the vote on the tax rebates secondary legislation. This, as noble Lords will recall, was an executive order and was challenged because of a very recent report indicating that acceptance of the policy as set out in the order would immediately catapult several hundred thousand families into dire poverty. Following a Motion to Regret, on which noble Lords overwhelmingly voted “content”, subsequent discussion at government level revolved around how to ensure that the wishes of the elected House were not thwarted. However, as we all know, the real issue was, and is, the relationship between the Government and the Executive.

Parliamentary scrutiny is a good thing; it is in fact the raison d’être of this House. What must never be minimised is the democratic process that enables the operation of parliamentary sovereignty on a daily basis and not just at elections. Again, as the noble and learned Lord, Lord Judge, has said:

“At the heart of the development of our constitutional arrangements, Parliament is there to protect us from authoritarianism, from despotism, from an over mighty monarch, but also from an over mighty executive.”

The two reports in question offer some solutions to this disturbing trend. Perhaps the most radical are those that seek to reset the balance of power. These might be initiated by Ministers taking on the responsibility of making reasoned decisions on whether or not a Bill should include delegated legislation and publishing these reasons in advance. The guiding principle here would be that such legislation is drafted only in the most exceptional circumstances and where the use of delegated legislation can be fully justified.

Finally, I suggest that the oxymoron of “mandatory guidance” should be immediately removed from the parliamentary lexicon.

The time has come to address this trend, and the Minister is earnestly entreated to take these reports very seriously and act upon them because, as the noble Baroness, Lady Cavendish, made absolutely clear, it matters.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative 5:27 pm, 6th January 2022

My Lords, I too congratulate the noble Baroness, Lady Cavendish, on initiating this debate. I too commend and endorse the powerful reports of the Delegated Powers and Regulatory Reform and the Secondary Legislation Scrutiny Committees.

Governments are under pressure to produce results. The “something must be done, and done quickly” mentality affects Governments of all persuasions. The tendency is to resort to legislation—to passing a Bill. Whether legislation is actually needed is another matter. One indication that it is not is the volume of statute law that has never been brought into effect. One study found over 480 Acts of Parliament passed between 1960 and 2020 with at least one section or schedule not yet commenced. Governments are tempted to give themselves wide powers to cover all sorts of potential problems. Skeleton Bills represent part—but only part—of a wider, growing problem in the Government’s approach to legislation. We need to come up with a solution that addresses the problem holistically.

I wish to commend a proposal that has been raised before, including in this House by the Leader’s Group on Working Practices, in its report of 2011, and in the Commons by the Political and Constitutional Reform Committee, in its 2013 report, Ensuring Standards in the Quality of Legislation. Each endorsed the proposal for a legislative standards committee to examine each Bill against a set of objectives embodied in a code of legislative standards. It would be able to identify and report on skeleton Bills prior to their consideration in either House and it would not be constrained in the way our committees dealing purely with secondary legislation are constrained. As the Hansard Society told the Political and Constitutional Reform Committee:

“Parliament should at least be a partner in the process of setting the standards of what constitutes a well prepared piece of legislation, rather than permitting the executive to determine this from bill to bill. If Parliament is serious about checking the growth of the statute book and improving the quality of law-making, then it must be both more imaginative and muscular in asserting its role and function vis-à-vis the executive.”

The Secondary Legislation Scrutiny Committee recommends that both Houses and government agree procedures for determining what our skeleton Bills—and what the consequences of such determination—should be. If government and the other place are not too keen, I think we should be prepared to go it alone with our own legislative standards committee. That would play to our strengths.

Photo of Lord Hendy Lord Hendy Labour 5:30 pm, 6th January 2022

My Lords, as a member of the Delegated Powers and Regulatory Reform Committee, I take the opportunity to join my noble friend Lady Andrews in paying my deepest respects to the superb chairpersonship of the noble Lord, Lord Blencathra, of that committee. I do not want to miss the opportunity to also pay my respects to the counsel that advises that committee—in particular, to our committee clerk, who indeed graces the Table before us today. Needless to say, I wholeheartedly endorse the report—and I can say that because my contribution to it was truly negligible. In particular, I endorse its recommendations.

Having been on the receiving end of a rap over the knuckles by the committee in respect of my own Private Member’s Bill for a failure to properly regulate a delegated power that I was going to give to the Secretary of State, it might be thought that I would have some sympathy for those in government who impose delegated legislation on us—but of course I do not. In my case, it was inadvertent, and probably negligent inadvertence at that. In the hands of government, as the title of our report describes, it is a denial of democracy. It may not be conscious, of course, but that is the effect of extensive delegation and skeleton Bills.

Like the noble and learned Lord, Lord Judge, but in my case much more predictably, I find that everything that I wanted to say in the debate this afternoon has already been said, but much better than I could say it. In sitting down, I want to express what I, as a batter at the end of the order, sense to be a consensus in the House: that there should be, with the other place, a joint committee to consider the way forward and to avoid the situation in which we now are. It is a crucial moment in parliamentary history, and we must deal with it.

Photo of Lord Janvrin Lord Janvrin Crossbench 5:33 pm, 6th January 2022

My Lords, I add my thanks to the noble Baroness, Lady Cavendish, for securing this debate this afternoon. I declare my interest as yet another member of the Delegated Powers Committee, and indeed a past member of the Secondary Legislation Scrutiny Committee during the time of the Strathclyde review.

I certainly share the view that abuse of delegated powers and a lack of proper scrutiny of secondary legislation corrodes our system of democracy. There are matters of fundamental constitutional principle involved here, but there is also a good British pragmatic principle at stake. Good scrutiny makes better law. Ignoring Parliament has, I submit, a practical cost. As others have pointed out, Brexit, and more so Covid, have certainly revealed far more widely the nature and effect of this marginalisation of Parliament. Therefore, it is not surprising that this issue is moving up the political agenda, and I welcome the momentum given to it by the two recent Lords reports and by the work of the Constitution Unit and the Hansard Society.

I will make three points, briefly because much has been said already. First, I too commend the noble Baroness, Lady Cavendish, for drawing particular attention to skeleton legislation. It has long been a source of parliamentary concern, and the number of skeleton Bills has grown significantly in recent years. I join in asking the Minister for his views on a “scrutiny reserve”, as proposed in the Delegated Powers Committee report, to allow that committee to take evidence from a Government Minister who introduces a skeleton Bill before that Bill’s Second Reading.

Secondly, as has been widely mentioned, there are other ways in which the Government inhibit effective scrutiny of their legislation by Parliament, including through Henry VIII powers, tertiary legislation and disguised legislation. The Delegated Powers Committee report looks to address some of these practices by a major revision of the Cabinet Office Guide to Making Legislation, not least to emphasise that constitutional principle is more important than political expediency. This suggestion specifically addresses what the noble Baroness, Lady Cavendish, referred to as a growing Whitehall indifference. Would the Minister support this sensible and reasonably modest step?

Thirdly, I join others in thinking that, in this field of delegated legislation, rebalancing this relationship between Parliament and the Executive raises much more fundamental questions, which have already been mentioned. Should both Houses of Parliament make common cause to develop more effective secondary legislation scrutiny procedures? In particular, should some means be found to allow the amendment of secondary legislation, perhaps in exceptional circumstances?

I share the view that there is a rising and, dare I say it, bipartisan tide of concern here. To rise with it, might the Government see any advantage in having a much wider look at this, even among their many other pressing priorities? I wonder whether there is scope to think about a new statutory instruments Act to replace the existing legislation, which, I notice, is as old as I am. The Minister has well-toned and well-honed political antennae. I look forward to his reply, although I fear it may fall short of an epiphany moment.

Photo of Lord Lisvane Lord Lisvane Crossbench 5:38 pm, 6th January 2022

My Lords, I congratulate my noble friend on securing this debate, her excellent article in the Financial Times and her outstanding speech to move the Motion. I speak as a former member of the Delegated Powers Committee and as a current member of the Secondary Legislation Scrutiny Committee. I think, as has been generally agreed this afternoon, both committees have done an excellent job in highlighting this—not to mince words—blight upon the legislative process.

Of course, skeleton Bills, although a baneful phenomenon, are only part of the problem. It has for some time been routine for Bills of every sort to contain wide ministerial powers, subject to minimal parliamentary control and scrutiny. The Delegated Powers Committee does an excellent job, but it cannot hold back the tide. Understandably, we see these problems through the lens of the relationship between the Executive and Parliament, and the leaching of power away from Parliament by these means should be a matter of wide constitutional concern.

The Government’s own definition of “good law” is law that is

“necessary, effective, clear, coherent and accessible.”

We are dealing here with law that fails the “accessible” criterion, because when Parliament deals with the parent legislation it is so often not clear how delegated powers will be used—as they are too often for matters of principle and policy that should be in primary legislation.

The real losers are our citizens. We in this House may not represent them, but we can act in their best interests. They and business, industry, our national institutions and civil society need to know how the law will be changed, to have the opportunity to comment and make representations, and to know how it will end up applying to them. It is all the more surprising that the House that is elected seems to engage so little with these issues. At the very least, there is the powerful argument, which has already been mentioned, that an Administration of a different party will happily use extensive delegated powers that the party presently in power thought would be for its especial convenience.

Four minutes is not long enough to have a really satisfactory rant, although the present state of affairs certainly deserves it. We are agreed that things have come to a pretty pass, but, as noble Lords have said this afternoon, the real question is: what do we do about it? Most of the sophisticated suggestions about new procedures would probably require extensive amendment of the Statutory Instruments Act, passed in 1946—only yesterday, I should say to my noble friend—when secondary legislation was concerned only with detail and the Donoughmore principles were observed.

The Delegated Powers Committee could routinely report on Bills starting in the Commons when they are introduced there, as it did very successfully with some Brexit legislation. That is taking its recommendation in paragraph 154 a little further. We might have a Joint Committee on delegated powers, but that would depend on a greater degree of interest and enthusiasm at the other end of the building. We could simply vote down draft affirmatives that should have been in primary legislation, although we would then be operating on what I term the “Strathclyde caution”, despite the splendidly fierce words of the noble Baroness, Lady Andrews, a little earlier.

I have heard noble Lords say that there should be no more than two rounds of ping-pong and that there is some sort of convention to that effect. It is not so. For example, the Corporate Manslaughter and Corporate Homicide Bill, which I remember very well, had 10 exchanges—five on each side. So perhaps we should set ourselves the task of making the securing of improper delegated powers really inconvenient, even to the edge of double insistence—not over the edge, but within shouting distance. That might concentrate ministerial minds powerfully.

Photo of Lord Liddle Lord Liddle Labour 5:42 pm, 6th January 2022

My Lords, I too congratulate the noble Baroness, Lady Cavendish, on introducing this debate and on the way that she shows originality and independence, as she does in her FT column. We are very grateful to her.

I have been on a steep learning curve on these issues, having spent a lot of my life in the shadows, as an adviser to senior politicians and Ministers. Recently, in the last 10 years, I have learned quite a bit about the importance of Parliament, which I had not quite appreciated before. I had the luck briefly to be a member of the Secondary Legislation Scrutiny Committee. Under the tutelage of its excellent clerk, her advisers and its excellent chairman, the noble Lord, Lord Hodgson of Astley Abbotts, as well as other distinguished members, such as the noble Lord, Lord Sherbourne, I learned an awful lot. Like the noble Lords, Lord Norton and Lord Janvrin, I have come to the view that it is time that we showed a bit of muscle on these questions.

There is a way through this that does not, as it were, throw the whole question of secondary legislation up in the air. It is there in the reports that have been the background to this debate. First, we need a process for the certification of skeleton Bills. One suggestion that struck me as a good one was that this would be done by the Speakers of this House and of the Commons, rather like the way that money Bills are certified. So skeleton Bills would undergo a process of certification, and, when a Bill or part of it was so certified, we as a House would take additional powers over the statutory instruments that flowed from the use of those skeleton Bills.

We should look at the power to make references back from the SLSC to the department on draft SIs before us. We should be able to propose amendments. Ultimately, the whole House, in extremis, should have the power to reject the statutory instruments that we regard as an abuse of delegated powers. I think this would lead, albeit in a small set of cases, to a transformation of departmental practice and the change in culture on the part of the Executive that a lot of us are looking for.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench 5:45 pm, 6th January 2022

My Lords, one of the lesser highlights of my festive season, which I have to admit was almost as unexciting as the New Year’s Eve of the noble Lord, Lord Rooker, seems to have been, was to read in the House magazine the advice of the noble Lord, Lord Pickles, on how to be a Minister.

“Few Acts of Parliament change much”, he reflected.

“It is secondary legislation that delivers policy.”

Of the many recent examples that confirm the truth of the noble Lord’s words, the most striking for me is the commitment to achieve net-zero greenhouse gas emissions by 2050, introduced under the Climate Change Act 2008 without any opportunity for meaningful debate about what consequences that would involve. A more significant policy decision, now that Brexit is behind us, it would be hard to imagine.

It has been a joy to hear today the vigour and the independence of our chief champions, the noble Lords, Lord Blencathra and Lord Hodgson of Astley Abbotts. I thank them and their hard-working committees, so many past and present members of which are here today. There seems to be a consensus among your Lordships, including those such as the noble Lord, Lord Bridges, with recent experience of ministerial office, that the scrutiny tools we have for delegated legislation are mismatched to their task. There is little guidance as to when statutory instruments are inappropriate, or by what procedure they should be made, or as to when Henry VIII clauses are allowed. There is no power to amend, and the power of your Lordships’ House to reject delegated legislation—a power undiminished by the Parliament Acts—lies unused, apparently out of fear that it is one of those powers that cannot be used without massive and destructive retaliation.

The Hansard Society in its current review, which I welcome, has a quite a job on its hands. No doubt it will propose sensible solutions, as others have before. But then comes the important question posed by the noble Viscount, Lord Eccles. Why would any Government favour fewer skeleton Bills and more scrutiny of delegated powers? Let me suggest two reasons, both connected with the courts. First and rather obviously, the courts can strike down only provisions that do not appear in an Act of Parliament. If the Act is reduced to a skeleton, the meat is taken off the bone and may be more easily devoured. Secondly, the stronger the scrutiny of Parliament, the less the courts will intervene. I learned recently that the French administrative court, the Conseil d’État, suspended no fewer than 51 Covid restrictions in the year to April 2021, including for the infringement of human rights to assemble, to private life and to worship. In some 200 other Covid cases, according to the court’s website, the Government amended their practices or were given advice by the court before judgments were issued.

Our courts are far less inclined to intervene, partly because of the weight they place on parliamentary scrutiny. The position was set out by Lord Sumption in the second Bank Mellat case in the Supreme Court. He stated that,

“when a statutory instrument has been reviewed by Parliament, respect for Parliament’s constitutional function calls for considerable caution before the courts will hold it to be unlawful on some ground (such as irrationality) which is within the ambit of Parliament’s review. This applies with special force to legislative instruments founded on considerations of general policy”.

He added that parliamentary review may also be enough in itself to satisfy the requirement of fairness.

My time is over. Perhaps I may give the last few seconds from the Back Benches in this debate to the Member of Parliament who deprecated what he called

“the new fashion of legislation by way of skeleton” and concluded that

“on the whole the old-fashioned way of saying in an Act of Parliament what is meant is certainly the better method of legislation.”—[Official Report, Commons, 1/8/1899; cols. 1072-73.]

His name was Augustine Birrell KC, and his critique was addressed to the Marquess of Salisbury’s second Government in 1899. It is high time, I suggest, to act on those sound instincts.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat Lords Spokesperson (Cabinet Office) 5:50 pm, 6th January 2022

My Lords, this has been an excellent debate and well worth all of us postponing our journeys home—I wish more noble Lords had been here. I hope the Minister will respond, after reflection, in writing to all those who have taken part in the debate about some of the important issues which we have been discussing, as well as, of course, responding to the two committee reports which we are discussing.

We have been talking about both the balance of power between Parliament and government and the quality of policy-making. The noble Lord, Lord Bridges of Headley, remarked that we are facing a good deal of half-baked Bills at the moment. I have certainly read through two half-baked Bills over my recess—the Higher Education (Freedom of Speech) Bill, which is a real mess, and the Elections Bill. I also read the highly critical report of the Commons Public Administration and Constitutional Affairs Committee on the Elections Bill, which was published on 7 December. In paragraphs 48 and 49 it states:

“The melange of delegated powers provided for in this Bill serves to highlight, and potentially adds to, the complexity of an already disparate body of electoral law …The Government should present the draft secondary legislation as early as possible, as committed to by then responsible Minister, Chloe Smith MP, to enable due consideration by both Houses and stakeholders of the proposed secondary legislation that will provide further detail on the purpose and implementation of the Bill prior to that legislation being laid or made.”

As an example of the style of the Bill, I quote from Schedule 6, paragraph 18:

The Minister may take whatever steps the Minister considers appropriate to promote awareness among qualifying people of the changes made by section 11 to the overseas elector franchise.”

That is the sort of thing that surely has to come out, and I hope the Minister will accept that.

In winding up, the Minister might like to tell us whether the Government will publish this draft secondary legislation before the Elections Bill receives its Second Reading in the Lords, and whether they will also publish their response to this highly critical PACAC report, which concludes in effect that the Bill in its current state is not fit for purpose. If the Government provide neither of these before the Bill reaches us, it will be appropriate, I suggest, for the Lords to rule that the Bill be paused until they have been received. The strength of these Commons criticisms means that there is a case for withdrawing the Bill in its present form and radically redrafting it. I suggest it might even amount to contempt of Parliament to attempt to push such a Bill through as it stands without taking such criticisms into account.

I say to the Minister that I have hard experience of Bills being paused when I was in his position in the Cabinet Office in the Lords. A Bill was paused for several months for extra consultations and it came back considerably improved. I note that at paragraph 39 the Secondary Legislation Scrutiny Committee recommends precisely that for skeleton Bills, saying that departments should be

“pressed into providing illustrative draft statutory instruments before second reading, to show how the powers were intended to be used.”

That, I suggest, should become a general principle: a draft of secondary legislation proposed under a Bill before Parliament should be published before either House concludes its scrutiny on it.

One of the basic rules, which has been quoted already, that any democratic Government should follow is to refrain from pushing through powers for Ministers which they would object to if they found themselves in opposition, with another party in power. Since the last election, this Government have been behaving as if they expect to be in power for a very long time and can therefore afford to reinforce executive power and sweep away parliamentary objections.

The polls now suggest that this is a less likely outcome of the next election than it seemed six months ago. Wise Conservatives should remember that limited government used to be a sound Conservative principle, and that if and when they again find themselves in opposition, they might deeply regret tipping the balance between Parliament and the Executive so far in favour of executive power. I can almost hear the weighty speech that the noble Lord, Lord Strathclyde, would then make about the importance of a strong Opposition and the wisdom of the Government giving way to constitutional objections and reasoned criticisms.

There are contradictions in the Government’s attitude at the present moment in calling for cuts in the policy-making ranks of the Civil Service while pressing forward with a heavy legislative agenda and on centralised legislative powers. That is a recipe for poorer-quality legislation and policy outcomes—of course, so is the increasing frequency with which senior and junior Ministers change positions. There is hardly time for a Minister to learn his or her brief before they move on again, leaving frustrated and bewildered officials to greet their successors.

I mention in passing that both these reports talk about the need to ensure that there are adequate resources for parliamentary scrutiny. That is a point that we should not lose, and I hope that the relevant committees will look into that.

The question of how we get down from the temporary surge of both post-Brexit legislation and the response to Covid is another important matter that we all need to look at. We should be returning to the normal pace of legislative change after this, not allowing the rush of each new Minister deciding that he or she wants a Bill and is going to compete to push it through, with the consequences that the noble Lord, Lord Norton, suggests.

It has been said by several Members—including the noble Viscount, Lord Stansgate, the noble Lord, Lord Janvrin, and others—that Parliament should now assert its right to amend secondary legislation or, at least to start with, to send it back more regularly to the Government to ensure that the quality of that legislation is more carefully examined before it is submitted.

Of course, the concentration of power in London and the weakening of local government in England has increased the pressure on government policy-making and the congestion in parliamentary scrutiny. I note that Ministers now issue detailed guidance to local authorities and parcel out funds to local government in multiple small packages; according to one figure I saw recently, less than £250,000 is being sent out in small packages to various local authorities in some cases. Whitehall and Westminster would be much less choked if more decisions were taken by locally elected bodies, as in other democratic states. Sadly, we have a Government that seem fundamentally to distrust local government.

The House of Lords, in turn, would be less heavily burdened with scrutiny if the Commons was more conscientious in its legislative tasks. I note, for example, that the Commons went through the entire Committee, Report and Third Reading stages of the Dissolution and Calling of Parliament Bill in 100 minutes—scarcely time for any serious debate. We are all familiar with Bills which arrive in the Lords with many of their clauses unexamined in the Commons.

The respective roles of the first and second Chambers of Parliament come into play here, and the importance of the scrutiny and revising role the second Chamber plays in our overcentralised state raises broader issues than we can touch on now. That is a matter for a broader discussion of parliamentary and constitutional reform which our Government promised to launch in their 2019 manifesto but have sadly backed out of. However, we need to tackle those issues, and I suggest that one of our key committees—probably the Constitution Committee—needs to therefore return to the question of the role of the second Chamber, how it should be expanded, and how, as the noble Viscount, Lord Eccles, and others said, we persuade the new generation of Members of Parliament at the other end that we play a necessary, useful and increasingly important role here.

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), Shadow Spokesperson (Cabinet Office, Constitutional and Devolved issues) 5:59 pm, 6th January 2022

My Lords, let me first say how grateful we are to the noble Baroness, Lady Cavendish, for the opportunity to debate these two reports today and for the excellent way in which she introduced this debate, which set us off in the right direction. She mentioned the House of Commons having its own committees; one of the things I always say to new MPs about the things that I wish I had known as a new MP is about these two committees and how useful the reports they produce are when examining legislation. Although we have had a brief debate, I hope we will have a further opportunity, when the Government respond to these two reports, to debate them alongside the Government’s response to look for the way forward.

The debate today has been thoughtful and proportionate; there is always a danger that it can descend into a whinge session on all the things we think are wrong. What has happened today is that we have seen productive and sensible suggestions for ways forward. I am not saying that there are no circumstances in which a Government should introduce a skeleton Bill, and I do not think that was the consensus today. But essentially, if it is deemed necessary to do so then the means by which the provisions are considered need to be improved.

These two reports have identified three broad categories regarding legislative scrutiny. One is the relationship between Parliament and government, and therefore the role of Parliament. My noble friend Lord Rooker made a point which I had also intended to make: too often, the Government confuse and conflate the arguments between the Commons and the Lords, but it is actually between the Executive and Parliament where the debate should be had. Thinking about the Strathclyde report, when I became Leader of the Opposition in your Lordships’ House one of the first things I faced was Jacob Rees-Mogg—perhaps in the role of Cromwell, I thought, having listened to the noble and learned Lord, Lord Judge—threatening this House with 1,000 new Peers if the Government did not get their way on a piece of legislation.

The second category was on the balance between primary and secondary legislation. The third is the slide, whether deliberate or just careless, into bad practices in drafting and considering legislation that undermine parliamentary democracy and therefore undermine good legislation.

The use of delegated powers and secondary legislation is not inappropriate in every circumstance; it is certainly not for the normal uprating and relatively minor and non-contentious issues. There generally is no issue where policy has been clearly set out in primary legislation and the SI or delegated legislation does not deviate from it. However, using delegated powers to avoid effective parliamentary scrutiny, whether because the detail is unavailable or because it is too time-consuming to introduce primary legislation—too much hassle—is where the problem arises.

The concern about skeleton Bills and delegated powers is not new. As we heard, in 1992 Lord Jellicoe’s committee responded to the “considerable disquiet” on this issue. That led to the establishment of what is now our Delegated Powers and Regulatory Reform Committee. The Cabinet guidance on legislation still refers civil servants and Ministers to that Lords committee, yet the latest version of the guide, produced in 2017, down- graded how Governments respond to its recommendations. Instead of the Government seeing the DPRRC as an aid to good legislation, they have moved towards seeing it as a challenge to them getting their own way.

In 2018, our own Constitution Committee reported on delegated powers and the legislative process, and it identified similar concerns. At that point, I had identified two examples where I thought there was inappropriate use of secondary legislation. The first was in December 2010, with the increase in higher education tuition fees from £3,000 to £9,000—that was clearly a policy issue. The second was on tax credits in 2015, where this House did not vote against an SI but just asked the Government to bring in mitigating measures before taking it forward. As your Lordships will recall, the Government hugely overresponded and overreacted to that when we saw the Strathclyde report.

Neither of those examples would have fitted the statement by Chris Grayling, the former leader of the Commons, that SIs were for “minor, technical and mundane” changes. I think we have moved a long way from that. I would argue that the process used by the Government in those two examples made those issues even more contentious than they needed to be.

Another example is the Childcare Bill in 2016, which in the Government’s first Session started its parliamentary passage in the Lords, mainly because the broad policy objective was uncontroversial. But it rapidly became clear that the detail was unavailable and a view had been taken that that could be sorted out later in statutory instruments, even including a provision providing for a custodial sentence. Then we had the Children and Social Work Bill, which contained 55 references to the use of secondary legislation, though no drafts of those orders were available, and 20 clauses on social workers with all the detail in regulation. About half the Bill was framework or skeleton.

I understand the arguments that legislation may need to be updated regularly or that consultation is required, but in both the cases I have mentioned the reason was that the policy and detail had not been completed. As we have heard across the House today, we know that the consideration of secondary legislation is inferior, but, while the parameters of what is appropriate are adhered to, that does not become a problem. In those cases, though, it certainly was a problem.

Where a Government consider that they have to introduce a skeleton Bill—perhaps because of parliamentary timetabling—we should look at additional ways of enhancing the process. We have heard some examples today. The DPRRC makes the helpful recommendation of a scrutiny reserve, providing time for Ministers to provide further information, evidence and justification. I have previously called for all draft regulations in such cases to be made available at least prior to Report.

My noble friend Lord Liddle’s proposal that there should be certification of a Bill as a skeleton Bill, and that in those very limited circumstances the statutory instruments could be amendable, deserves further consideration. I think that could be helpful. It would not encourage skeleton Bills through laziness or any parliamentary sleight of hand, but, where it was essential, Parliament would still have the opportunity for effective consideration. I also commend the recommendation by the noble Lord, Lord Norton, for a legislative standards committee; I think that would be helpful, certainly for some of the drafting and what I call the workability of legislation. So there are ways of doing this better.

Noble Lords will be aware of the 2006 report by the Joint Committee on Conventions, which emphasised that your Lordships’ House had a limited role when considering secondary legislation but also concluded that one of the very few situations when the House had constitutional cover for a fatal Motion against an SI was

“when the parent Act was a ‘skeleton Bill’, and the provisions of the SI are of the sort more normally found in primary legislation”.

Your Lordships’ House is, wisely and rightly, uncomfortable with fatal Motions, so the kind of process that has been described today by noble Lords across the House would certainly present a more moderate and helpful way forward without disrupting the Government’s timetable or the programme of legislation.

When parliamentary scrutiny is evaded, Professor David Judge—of the University of Strathclyde, interestingly —refers to that as “the dark side”. He identifies the essential components for effective scrutiny as a willingness by the Government to have their legislation properly scrutinised, alongside the willingness and the capacity of Parliament to do so. There is not time today to consider all the practical recommendations in the two reports that have been brought to the House today, but it is clear that they all require the willingness of both parties, or at least one party, and that is where we ought to direct our energies and efforts.

I have a couple more comments to make about scrutiny. The first is that we have heard before in your Lordships’ House—indeed, from the Minister— the Government’s unpersuasive argument against amendments: “The House of Commons didn’t amend this Bill, so likewise your Lordships’ House shouldn’t vote for any amendments either.” My objection to that is twofold. First, the reason for our consideration is that there may be further information, a new issue or a different viewpoint that has come to light and which it would be helpful for Members of the other, elected House to consider, especially when that part of the Bill has not even been considered in the other place because of timetabling.

My second objection is that it misrepresents and overstates the role of your Lordships’ House. We are a scrutinising and advisory Chamber, and any amendment to primary legislation by this House has to be voted on by the elected MPs. My noble friend Lord Rooker has on more than one occasion referred to your Lordships’ House, perhaps unkindly, as a sub-committee of the House of Commons, and it is the case that our deliberations on primary legislation have to go to the Commons. A Government who are confident of their position have nothing to fear from the scrutiny of your Lordships’ House, but it is understandable that a weak Government who do not enjoy the confidence of their MPs may not want to reconsider an issue—in which case that is not about support from this House but about support in the other place.

Finally, Select Committees are probably the most important non-legislative role that Parliament has. When examining ministerial attendance at Select Committees, it is clear that it is not just the “Today” programme on Radio 4 that has its invitations rejected because no government Minister is available. That should change in all cases, especially when Select Committees are looking at legislation or its impact. Ministers should not refuse or unnecessarily delay their appearance before a Select Committee.

It is clear that considerable intellectual efforts and practical experience have been brought to bear in producing these reports. The noble Baroness, Lady Cavendish, brought the reports together, and her experience and the evidence in her Financial Times article have been helpful to the House in considering these issues. I look forward to the Minister’s response today, but also to a further debate, when we can examine and discuss the Government’s response to these two reports.

Photo of Lord True Lord True Chair, Intergenerational Fairness and Provision Committee, Minister of State (Cabinet Office), Chair, Intergenerational Fairness and Provision Committee 6:11 pm, 6th January 2022

My Lords, I do not agree with my noble friend Lord Hodgson of Astley Abbotts that this debate would not interest people in the Dog and Duck—though it has to be said I have not felt like either a dog or a duck in this debate but rather like one of those creatures in a shooting gallery at the circus, as each one of your Lordships has risen to take aim. This subject should interest people in the Dog and Duck, and it rightly interests your Lordships. The subject matter and the quality of the debate justifies, amply and fully, the decision of the noble Baroness, Lady Cavendish of Little Venice, to bring this important matter before the House. I thank her for the measured and balanced way in which she set out her arguments, and I pay that tribute to other noble Lords who have spoken.

Good, clear, well-scrutinised legislation should be the objective of us all. I am quite happy with the idea expressed—one might not agree with this but I do—that the quality of government is improved by scrutiny. Here I agree with my noble friend Lord Norton of Louth that it is the constitutional right and duty of this House to ensure that the laws that any Government bring forward are of a high standard in both their policy intent and their drafting.

Many noble Lords made points addressing the ability of each House of Parliament to reject but not amend legislation. That is a matter not for the Executive only but for Parliament. As my noble friend Lord Sherbourne acknowledged, there is an issue that relates to your Lordships’ House in that regard. This House maintains the power and right to examine statutory instruments laid before it. The Government support the declaration made in 1994:

“That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration.”—[Official Report, 20/10/1994; col. 356.]

Between 1950 and 2015, this House withheld consent to seven statutory instruments.

The Government agree with my noble friend Lord Strathclyde in his review after the House withheld agreement to the tax credits regulations in 2015 that in respect of these matters the will of the elected Chamber should prevail. There is no mechanism for the elected Chamber to overturn a decision by this House on a statutory instrument, and the Government said at the time that this could not remain unchanged. As we go forward, we will keep that situation under review, and we remain prepared to act if the primacy of the Commons is threatened.

I am sorry to have started on what might seem to be a minatory note, because I am actually profoundly interested in the many varied and interesting contributions made by noble Lords. As several—indeed, all—of them have justifiably noted, we have the benefit of a pair of carefully considered reports on the process of legislation from your Lordships’ Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee. These are both thorough and learned reports, as one would expect of the committees in question. I congratulate my noble friends Lord Blencathra and Lord Hodgson, as well as all those noble Lords who served, on the quality of the reports. They deserve a full and proper response from the Government. I cannot pre-empt that response at the Dispatch Box today; it will be published in the usual way and, I trust, in the not-too-distant future. I say to the noble Lord, Lord Wallace of Saltaire—I nearly said, “my noble friend”, as we were noble friends for years—that this debate will certainly be taken into account as we consider the response.

Noble Lords will not be surprised to know that I did not particularly care for the soundbite titles—that democracy has been denied or this Government operate by diktat. I have never got out of bed wanting to diktat and I do not intend to start doing so at this advanced age.

The Government consider that this House’s role as a revising Chamber is of the utmost importance. In this House, we have the privilege of hearing from highly informed and experienced experts and practitioners from every walk of life, if occasionally with a soupçon of political spin. The Government take that expertise seriously and listen carefully to the concerns raised by noble Lords on all sides of the House. I share the opinion expressed by all, including in the conclusion of the noble Baroness opposite, that Bills often leave this House better than when they arrived. We should facilitate that process, which is of course down to the hard work, skill and knowledge of many noble Lords here today and the two committees that submitted these reports.

As my noble friend Lord Blencathra underlined, the issues raised here today are not new. For hundreds of years, Parliament has aimed to strike the right balance between allowing the Government to act and ensuring that Parliament’s voice is heard. The noble and learned Lord, Lord Judge, reminded us that this dilemma goes back to Tudor times. Parliament must consent to changes in the law. I understand some of the concerns expressed, and we will consider carefully what has been said. Skeleton Bills attract attention but, as the noble Baroness, Lady Smith, acknowledged, they may have their place and are not unknown; indeed, the noble Baroness, Lady Cavendish, will remember from her time in No. 10 that the Cities and Local Government Devolution Act 2016 and the Childcare Act 2016, referred to by the noble Baroness, Lady Smith, were examples of this.

The procedures for the delegation of powers are now well established. They almost invariably have parliamentary oversight through the negative or affirmative procedure or other procedures that Parliament has decided are appropriate. I remind noble Lords that delegated powers are granted only by Acts of Parliament, each of which will have been thoroughly scrutinised in this House and the other place.

Although it is true that there has been a general trend over the years—indeed, over many years, and not solely under this Government—of increasing numbers of statutory instruments being made, this is not a straightforward issue. As society evolves and becomes more complex, so do our laws. Government does more than it did 50 or 100 years ago. Your Lordships will have differing views on the desirability of that, although I rarely come to this Chamber without being asked for the Government to do more. Be that as it may, the world is more complex. Public expectations of the state are higher, and technological change is accelerating. As my noble friend Lord Hodgson of Astley Abbotts said, in order for the Government and our laws to adapt to this fast-changing world, they need to have delegated powers to give them the flexibility and speed to act and react; indeed, I think that every noble Lord who has spoken has acknowledged the necessity of delegated power.

Over the last few years in particular, the Government have needed to respond to a changing and complex landscape; first, following the referendum and general election decisions that the UK should leave the EU, and then, of course, with the response to the Covid-19 pandemic, to which many noble Lords have referred. It was right that the Government responded in the face of the pandemic to protect lives and livelihoods, while reducing the spread of Covid-19, including variants.

The alternative to delegated powers is to continually return to Parliament for every minor or technical change. I venture to suggest that this would not be the most practical use of noble Lords’ time or expertise— I do not think that anyone has suggested in the debate that that should be the case. The Government share the view of their predecessors that delegated powers are necessary. We believe that the processes around their creation and implementation are robust and have sought to improve them.

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Chair, Secondary Legislation Scrutiny Committee, Chair, Secondary Legislation Scrutiny Committee

I am grateful to my noble friend for giving way. He was kind enough to quote me, but he quoted only half of what I said. I said that life is more complicated and therefore we would need more delegated legislation on important issues, but the Government had to give more and better methods of scrutiny. He quoted half of what I said about the concessions by the legislature, but he did not give the concession that the Government must make in response to that.

Photo of Lord True Lord True Chair, Intergenerational Fairness and Provision Committee, Minister of State (Cabinet Office), Chair, Intergenerational Fairness and Provision Committee

My Lords, I am sad; I was seeking courteously to acknowledge the contribution made by my noble friend. I am grateful that he has reiterated what he said. I have said, and will say again, that the Government will carefully consider the points made by his committee and others, which embrace much of the second part of what he said.

I was referring to the efforts made by the Government to improve implementation. In the last few years, all departments have been asked to appoint a Minister and senior official to be responsible specifically for secondary legislation. Departments are responsible for the quality of their own secondary legislation, and Ministers can be asked to account for their department’s performance to the Parliamentary Business and Legislation Cabinet Committee. All statutory instruments laid by Ministers must now go through the PBL Committee triage process. This is relatively new. Departments are given laying dates to limit the number of statutory instruments being considered at any one time by Parliament. This process ensures that there is a steady flow of statutory instruments being laid before Parliament and therefore, I hope, facilitates better scrutiny. These changes have strengthened the Government’s approach to secondary legislation and created a clearer structure for accountability.

Before a Bill is introduced by the Government, we take steps to ensure that any and all powers contained within it are justified. Ministers are brought before the Parliamentary Business and Legislation Cabinet Committee, where the Bills are examined in detail. The Lord President of the Council, who chairs that committee, told the Delegated Powers and Regulatory Reform Committee earlier this year that he will

“invariably ask for the powers to be justified” and that

“it is in the interests of the Government to be as specific as possible in the Bills that have been brought forward.”

I have the privilege of being a member of that committee and can assure noble Lords that the Lord President is as good as his word.

Ministers must seek the agreement of the PBL Committee prior to introduction of a Bill. They must provide the committee with a delegated powers memorandum and the committee will examine each power and the justification for it. The Lord President wrote to the chairs of the DPRRC, SLSC and Constitution Committee setting out that—and I profoundly agree with this sentiment—

“Bills with substantial powers, though sometimes essential, should not be a tool to cover imperfect policy development.”

I agree with what the noble Baroness opposite said about that. The PBL Committee is one mechanism through which this is safeguarded as the committee must be satisfied that the powers are necessary and essential before agreeing a Bill’s introduction. The committee, as the Lord President went on to say,

“discusses every single power and every single Henry VIII power that comes forward. It has a note provided to it on the use of powers and the legal consequences of those powers. The law officers sit in and we have to be convinced that those powers are needed and are proportionate. The law officers are very important in this, particularly in relation to Henry VIII powers.”

The noble Viscount, Lord Stansgate, asked about the control mechanism. PBL is the check and the pressure to ensure that Bills are fleshed out at the first stage. Noble Lords can be assured that any Bills with delegated powers have been interrogated internally before being brought to this House and the other place. In every meeting on delegated legislation, consideration is of course given to the likely challenges to be presented in your Lordships’ House. As this debate demonstrates, your Lordships have a great interest in delegated powers, and I repeat that it is in every Government’s interest to ensure that before a Bill arrives here, each and every power is justified and subject to the appropriate parliamentary procedure.

Of course, this is a matter of judgment. Sometimes the DPRRC will make a different judgment. I and all Ministers fully respect that. The Government examine any report and concerns about these powers in a Bill seriously and bring amendments when necessary. There is, of course, further scrutiny of such powers when a Minister decides to use them. Your Lordships will be well aware of the differences between these procedures, and the Government greatly appreciate the work of the Secondary Legislation Scrutiny Committee and others in holding us accountable through their examination of instruments.

I am aware of the amendment tabled by my noble friend Lord Blencathra, and that of my noble friend Lady Williams, on the code of practice for non-crime hate incidents. I look forward to hearing speeches, but it is not right to begin the debate on the police Bill here or to discuss the amendments tabled to it. That is for another day, and other noble Lords will wish to take part. The House will have its chance to consider whether that is an appropriate delegation of power, as is right and proper.

I am also aware that the noble Lord’s committee has made recommendations in its report relating to guidance, and that a number of noble Lords, including my noble friend Lord Blencathra, the noble Baroness, Lady Andrews, and the noble Lord, Lord Davies of Brixton, have spoken on this. I agree that guidance is not law, as the Leader of the House of Commons said in evidence to the noble Lord’s committee when he stated:

“I very strongly agree … that guidance is guidance, and the law is the law.”

That is right, but I have heard what has been said in this debate and we will carefully consider the recommendations of the report. We will carefully consider the reports of both your Lordships’ committees and will publish the responses shortly.

I am tempted to respond to many suggestions made in the debate. The noble Lord, Lord Janvrin and my noble friend Lord Bridges of Headley cast particularly fruity-looking flies. Your Lordships will appreciate that I will not respond specifically at this stage, but I can assure you that we are carefully considering those recommendations, including those that suggest amending the language of the Cabinet Office’s guide to making legislation. I do not wish to pre-empt the Government’s response today. I hope that we will have a further opportunity to consider that, but I cannot speak for the usual channels.

In a changing and complex world, delegated powers are necessary for the proper functioning of government. I acknowledge that the particular circumstances of the last few years have at times meant legislating at pace and taking a greater number of powers that at one time would have been inconceivable to many of us, to ensure flexibility as the situation evolves, especially in responding to the pandemic. As the pandemic abates, I am hopeful that we will find ourselves returning to a more predictable rhythm of producing and passing legislation. The noble Lord, Lord Wallace, referred to this. He will forgive me if I refer to his specific points on the Elections Bill separately.

The Government have confidence in their processes, and the processes in Parliament, to ensure that laws are necessary, clear and effective. I repeat: we will take on board the reports of the two committees and your Lordships’ comments, in what has been an outstanding debate. Where the Government feel that processes can be improved, we will endeavour to do so.

It is the Government’s constitutional role, and indeed their right, to put before your Lordships proposals for legislation they judge to be expedient to deliver on their manifesto commitments and to address the issues of the day. It is Parliament’s role to ensure that this legislation is effective, necessary and balanced. Your Lordships have a fundamental place in that.

Your Lordships’ views have been heard. I have listened to the debate with very great care. The debate is timely. I am confident that this balance between government and Parliament will continue to evolve for the better. I repeat that I hope the Government will, before too long, be able to respond to the reports recently published by your Lordships’ committees.

Photo of Baroness Cavendish of Little Venice Baroness Cavendish of Little Venice Crossbench 6:30 pm, 6th January 2022

I am very grateful to the Minister for making the time and giving such a thoughtful response. I will use the few minutes I saved from earlier to make a few remarks, if that is all right.

I am very glad to hear that serious consideration is being given to the reports of the two committees and some of the suggestions made in the Chamber. I will comment on three of the points the Minister just made. The first was that the world is more complex and that therefore we will need to fast-track more legislation and potentially have more delegated powers. People have thought that the world was more complex for the last 200 years. I am always surprised that a Conservative Government believe in the machismo of legislation. It seems that we have got to a point where the volume of legislation is somehow taken as proof of merit. I question whether the world becoming more complex genuinely necessitates the use of more powers, with great respect to the noble Lord, Lord Hodgson.

The Minister made the point, quite correctly, that Brexit and Covid were extremely unusual circumstances. I think everyone would agree with that. Of course, noble Lords are primarily concerned that the issues we are discussing go way beyond those two issues, and we need to address that.

The third point is that it was interesting to learn that there is now a Minister in each department responsible for secondary legislation. I am not sure that that is a great comfort. If every department now has a Minister responsible for secondary legislation, I have no doubt that they will be keen to push more through. I leave that to your Lordships.

I am delighted that the Minister rightly said that these two committee reports deserve a full and proper response from the Government. I am really grateful to hear that that will happen. As the noble Baroness, Lady Andrews, said, these are reports from some of the most senior and learned people in our country, not from rabid pamphleteers—although I have always rather fancied myself as a rabid pamphleteer. I recognise that the expertise here across the parties is arguing very clearly for fundamental change.

I appreciated deeply the wonderful history lessons we got from the noble Baroness, Lady D’Souza, and the noble and learned Lord, Lord Judge. I will remark on two other speeches. The fact that someone as experienced as the noble Lord, Lord Bridges of Headley, believes that there is what he called a “subtle but profound” change of culture in government is very significant; and the fact that someone as experienced as the noble Lord, Lord Rooker, said that he did not actually know what a “public notice” was should give us all cause to worry. I close by quoting the noble Lord, Lord Rooker: Parliament should never be in ignorance of laws passed in its name. I am very grateful to all noble Lords who have contributed.

Motion agreed.

House adjourned at 6.33 pm.