Strengthened Statutory Procedures for the Scrutiny of Delegated Legislation: DPRRC Report

Baroness Thomas of Winchester Excerpts

Tuesday 5th March 2013 Lords Chamber

Moved by

[Baroness Thomas of Winchester]

That this House takes note of the Report of the Delegated Powers and Regulatory Reform Committee on Strengthened Statutory Procedures for the Scrutiny of Delegated Legislation (3rd Report, HL Paper 19).

[Baroness Thomas of Winchester]

My Lords, first, I want to put on the record my thanks for and admiration of the work of the Delegated Powers and Regulatory Reform Committee secretariat in carrying out the research which enabled my committee to produce the report that we are about to debate. I thank in particular Kate Lawrence, our clerk until the end of last year who is now on a two-year sabbatical, and Peter Milledge, our invaluable counsel. I hope that the House will be as impressed as I am by the magnificent Table 1 on page 8 which sets out clearly the variations in strengthened scrutiny procedures that are at the heart of our report. I shall come back to those variations in a moment.

As a committee, we have been increasingly concerned in the past few years at the proliferation of procedures in legislation designed to give Parliament more control over delegated powers. This may sound counterintuitive: surely it is nothing but a good thing for Parliament to have an increased role in scrutinising all powers proposed by the Executive, particularly in the field of secondary legislation, which has always been the Cinderella in the legislative landscape, if I may mix my metaphors a bit. We agreed that enhanced and rigorous scrutiny is a good thing but needed to say to the Government, “Please don’t invent yet another variation on a strengthened statutory procedure without examining existing procedures first, otherwise the complexity you are in danger of creating may lead to confusion and muddle rather than enhanced scrutiny”. We even suggested that the House might consider the case for rationalisation of all these variations by legislation.

Then there is consistency of language. In seven of the scrutiny procedures, the Government have a legal duty to “take account of”, “have regard to” and “consider” a relevant committee’s recommendations. We wondered whether there are subtle differences in these expressions.

Before going any further, perhaps I should put our report in context by quickly sketching out how our committee came into existence, what has led to these new procedures and what they are. The Delegated Powers Committee was set up only in 1992—very recently by House of Lords standards—because of real disquiet over the way successive Governments were increasingly using order-making powers in Bills, some of which were little more than skeletal. This practice enabled Ministers to be vague about the all-important detail and future secondary legislation as the Bill made its way through Parliament. In justifying this lack of detail, Ministers could always cite flexibility for changing circumstances and, of course, precedent, but the House made it clear that leaving so much important detail to unamendable instruments was no longer acceptable. In many cases the detailed policy had simply not been worked out. The upshot was the Jellicoe report, which recommended the setting up of the Delegated Powers Committee to examine whether the delegation of legislative power in new Bills was appropriate. Eleven years later, the Merits of Statutory Instruments Committee was also set up to look at existing statutory instruments. Both committees have different names now to reflect their additional duties. They have certainly given a higher profile to delegated legislation and have, I believe, over the course of their existence, proved their worth. Governments have always taken the DPRR Committee’s reports seriously, very often acquiescing in its recommendations as Bills go through the House.

It may be worth noting that the other place does not have committees carrying out the same function; indeed, my committee is often asked to comment on draft Bills before a Joint Committee of both Houses. However, the other place does set up a scrutiny committee, under the super-affirmative procedure, if necessary, which issues a report, as does my committee. This might therefore be the right place to question whether having this duplication really makes sense. I gather it is fiendishly difficult to set up Joint Committees for both Houses but should this process not be made easier, and certainly speedier for this purpose, if not for any other?

Our report starts by setting out the different types of statutory instrument before concentrating on those orders which attract some kind of enhanced scrutiny procedure. These orders are all Henry VIII powers, which enable Ministers to amend Acts of Parliament by secondary legislation. Who would have thought that Henry VIII’s name would still be immortalised in quite this way? My late colleague Lord Russell said that the very first time King Henry used this power was to vary the price of wine. Although many Henry VIII powers are limited, there are many others which are much more significant. Nearly all Henry VIII powers are exercised by ordinary, familiar affirmative instruments, which have to come before the House before they can be made. However, there are now order-making powers in certain Bills which are subject to the super-affirmative or enhanced affirmative procedure, by which these orders receive much more detailed scrutiny, with many variations, than an ordinary affirmative order. Our report details all the order-making powers in Acts which attract a strengthened scrutiny procedure, and exactly what that procedure is in each case. Perhaps the best example is the Legislative and Regulatory Reform Act 2006, once dubbed the “Abolition of Parliament Bill”, because of the scope and significance of its delegated powers. This Act ticks all the requirement boxes in Table 1. All this may seem quite an undertaking but these safeguards were the price that the then Government had to pay for enabling a Minister to reduce or remove a burden imposed by primary legislation.

At the beginning of my remarks, I said that our report asked the Government not to invent a new variation on a strengthened statutory procedure without examining existing procedures first. The second major point we needed to make to the Government was, “Please make it clear whether legislative reform orders are to be used even if the proposed changes are highly controversial and if proceeding with them is not recommended by the relevant scrutiny committee in one or both Houses”. Just to be clear, the previous Government said that they would not proceed with proposed changes under these circumstances.

Since our report was published, the Government have responded to several of our questions but only to one of those two main points. We now know which committees are to scrutinise which orders. We also know that the Government will use the existing model, if possible, when proposing a strengthened scrutiny procedure in future; if not, they will explain the reasons for inventing a new procedure. They have also undertaken to lay supporting documents setting out the detail of and rationale for any proposed order under Section 19 of the Localism Act 2011.

Several of our concerns have been addressed but we still do not know whether LROs will be used for highly controversial changes and whether the Government will respect the relevant scrutiny committee’s power of veto. Before further legislation is drawn up, it is vital that the House knows the answer to those two crucial matters. For example, we know that the Government are contemplating a deregulatory Bill in which it is quite possible that new rules will be introduced to change the super- or enhanced affirmative procedure by cutting down or cutting out consultation.

The right honourable Oliver Letwin made it clear in his evidence to the Secondary Legislation Scrutiny Committee that some legislative requirements might change so as to,

“reflect the principle of proportionality”.

I am probably not the only person to worry about that word “proportionality”. Governments skip a proper consultative process at their peril. A good example is the lack of consultation on a crucial part of the recent Social Security (Personal Independence Payment) Regulations, which were changed by the DWP at the last minute. To say that the change put the cat among the pigeons is putting it mildly, and at least the Minister apologised for inadequate consultation on that occasion.

At the end of our report is a paragraph headed “New opportunities”, which I shall now turn to. The question arises that if a strengthened procedure is considered proper for some Henry VIII powers in certain Acts, why do we put up with such a comparatively crude way of considering some very important affirmative instruments that are not Henry VIII orders? What I mean by this is the “take it or leave it” procedure that the House has for considering affirmative instruments. They can either be agreed to or disagreed to, full stop. Non-fatal amendments or regret Motions to the approval Motion, whether agreed to or not, are in effect neither here nor there.

Our report is concerned with delegated legislation that is subject to enhanced procedure by statute, but it is high time that the Procedure Committee turned its mind to considering a non-statutory procedure for consideration of certain important instruments. This might attract, say, two bites of the cherry, by which I mean that noble Lords could be given a chance to have a preliminary debate before the instrument is taken through the House. The Government could be encouraged to table a proposal for an instrument which might then attract one or more suggested amendments on which votes could take place. Even if the Government decided to take no notice of any successful suggested amendments when the instrument was going through the House, at least there would have been the possibility of change, because any amendments would have been suggested before it was too late.

A recent candidate for such a procedure would have been the draft PIP regulations that I just mentioned. We know that the Government were running seriously out of time for them, and I well understand that DWP orders may have that problem, but it might have been a better instrument if the House had been able to have two bites of that particular cherry. In the event, the Government have published amending regulations to take account of the many representations made.

This begs the question of whether the House really has the scrutiny of ordinary affirmative SIs right. All my committee and the Secondary Legislation Committee can do is to recommend and warn. It is up to the House what then happens. Should the House be more robust in voting down instruments? In spite of the recommendation of the committee of the noble Lord, Lord Goodlad, on the House’s working practices, I am not particularly attracted to that course of action because I think it is a bit unrealistic and confrontational. The noble Lord, Lord Filkin, may disagree with me when we hear what he has to say later on; I am very pleased he is to speak. I would prefer the House to allow a genuine draft of the instrument to be debated and voted on, with suggested amendments before the instrument was agreed to.

I am very aware that many Peers believe that there should be a way of amending statutory instruments, but the whole point of delegated legislation is that it is just that: it delegates a power to a Minister to bring in some policy the House has agreed to in principle, and the whole point of my committee is to see that that delegation is not inappropriate. However, there is no reason why the House should not devise some way of improving the scrutiny of important statutory instruments without upsetting the whole legislative apple cart. I very much look forward to the rest of the debate. I beg to move.

--- Later in debate ---

[Baroness Thomas of Winchester]

My Lords, I thank all noble Lords who spoke tonight in this most fascinating debate. I am very grateful for the kind but quite unmerited remarks about me. I should put on record our great thanks to Allan Roberts, who was our principal counsel for many years. He did not have a hand in this report, but I am very pleased that he was mentioned, because his contribution to the work of the committee has been outstanding.

I will not make another speech, because the hour is late. It is extremely tempting to do so, because there are so many matters that I would like to take up. I loved the trip down memory lane taken by the noble Baroness, Lady Gardner, and I was very pleased that the noble Lord, Lord Filkin, was so trenchant in his remarks. My suggestion would not mean that the Government would not face the prospect of the House voting against such an instrument; it would simply mean that they would have early warning of it so that they had the possibility to make changes. However, I will not say any more at this point except to thank everyone for taking part.

Motion agreed.