Strathclyde Review

Baroness Fookes Excerpts

Wednesday 13th January 2016 Lords Chamber

[Baroness Fookes (Con)]

My Lords, I rise to take part in this debate from the perspective of the chairman of the Delegated Powers and Regulatory Reform Committee. I am speaking for myself because I have an extremely active and assiduous committee and I would not dream of speaking on its behalf, so anything I say is my own view alone.

I have come to value very much the work that we do in a quiet way, which is certainly of no interest whatever to the media. But we perform a valuable role and therefore option 1 in my noble friend’s report fills me with horror. That is because there is nothing in the House of Commons as it is currently constituted which would replicate the work we do.

For those who may not be so familiar with the committee’s work, perhaps I may be allowed to explain that we look at each Bill as it comes through, usually between Second Reading and Committee. We have the help of an assiduous team of very experienced lawyers and we look, first, to see whether the delegated power is appropriate—in other words, is it delegated legislation that ought to be on the face of the Bill?—and, secondly, whether the degree of parliamentary scrutiny is appropriate for that particular work.

We are guided, hopefully, by a departmental memorandum which is supposed to explain why the powers have been taken and the justification for them. I have to say that the quality of these memoranda is extremely variable, and indeed we produced a report on this subject before I became the chairman. If the Government want to make a modest start, they should take a look at how seriously the various departments, and the Bill committees in particular, take those duties. I think that the Cabinet Office, which actually tells the departments what they are supposed to be doing, should take a good, hard look and make sure that they do so. This might deal right at the outset with some of the problems that subsequently come forward.

Much greater attention should be given to allowing draft regulations to be brought forward while we in the House of Lords are looking at the main Bill, because often they are not available. They do not become available for ages, and again a lot of difficulties could be overcome if the regulations were with us so that we could discuss them without coming to the final point where we have to accept or reject or, as I rather vulgarly call it, swallow it whole or spit it out.

Furthermore, the Government should be looking seriously at the way in which they think about the development of legislation. I can remember a time when, before important Bills ever appeared, they would have a Green Paper making suggestions, then a White Paper giving the Government’s views and finally the Bill. Where has that system gone? I am absolutely certain that, if we had more of that, we would have far fewer problems that then arise subsequently.

[Noble Lords]

Hear, hear!

[Baroness Fookes]

Alternatively, we have the draft Bill approach, which again can be valuable, but how often is that used? In my view, not often enough. If the Government are really keen on improving the quality of legislation and not having the various difficulties that have been so eloquently expressed, they ought to take a hard look at how they approach the whole possibility of legislation.

Let me turn to the options. As far as I am concerned, I have already ruled out firmly option 1. Other people have already explained that option 2 has its shortcomings. I tend to favour option 3, but with considerable caveats. Unfortunately, in his excellent report my noble friend failed to give any detail as to how the option might be implemented, and that is absolutely key to whether it will work well or not. I think he suggested that it might be considered by the Procedure Committees of both Houses, if I remember correctly, but I think we need considerably more than that.

Perhaps I may put forward a few suggestions, which no doubt will be fired upon and lost. If the House of Lords decides that it does not want or disapproves of a statutory instrument, a committee should be set up to set out the reasons—this is used in other matters—which would then be sent to the House of Commons and the relevant Minister. The Minister would be required to formulate a Written Statement setting out his views on whether he agreed or whether there should be a modified statutory instrument. Built into it, there should also be some time delay to make sure that the House of Commons had the opportunity to consider it and have a full debate.

Those would be my suggestions. No doubt fault will be found with them, but I am not going to go for option 3 unless I am pretty sure that it will be a useful and practical solution.