Democracy Denied (DPRRC Report)

Lord Blencathra Excerpts

Thursday 12th January 2023 Lords Chamber

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[Lord Blencathra]

That this House takes note of the Report from the Delegated Powers and Regulatory Reform Committee Democracy Denied? The urgent need to rebalance power between Parliament and the Executive (12th Report, Session 2021–22, HL Paper 106).

[Lord Blencathra (Con)]

My Lords, we are debating two unprecedented reports from the House of Lords Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee. Never before have two committees acted in tandem to draw attention to a serious parliamentary problem. The number of noble Lords signed up to speak on a matter many would consider to be just a legal, technical, boring parliamentary issue is also unprecedented. The issues may be that, but when laws are passed without proper parliamentary scrutiny, they cease to be just technical, as they threaten the rights and freedoms of the individual. Both our reports express considerable alarm and criticise the increasing tendency of all Governments in recent years to adopt procedures that effectively bypass Parliament’s role in the legislative process.

Why are we reporting now? The Delegated Powers Committee and the Constitution Committee have drawn attention to the abuse of excessive delegated powers over many years. However, this time we did a comprehensive study and looked at these issues going back 90 years, and we found that the problems identified have been worsening over the last 20 years. The result of this trend has been an increase in the power of the Government at the expense of Parliament.

It is worth reminding the House and the Government that the committee members who drew up these two reports are not naive new colleagues. The combined parliamentary experience of our committee members is over 520 years, with some members having exceptionally long parliamentary careers. For example, the noble Lord, Lord Rowlands, entered the House of Commons in 1966, and the noble Lord, Lord Lisvane, has 51 years’ experience of Parliament. That does not make us experts, of course, nor does it give us any moral authority over the Commons. It just means that some of us have seen these problems growing for a considerable time. Having reviewed the use of delegated powers over the last 90 years, we concluded that,

“a critical moment has been reached and it is now a matter of urgency that Parliament should … take stock, and consider how the balance of power can be re-set.”

Let us be clear that the reports and all our members accept that delegated legislation is absolutely essential; no democratic Government in the world can function without it. However, far too often primary legislation is just skeletal, with all the details filled in by secondary legislation, which may get little or no scrutiny at all. I shall let my noble friend Lord Hodgson of Astley Abbotts set out the injustices caused by skeleton Bills.

Our Delegated Powers Committee report identified some other key issues and abuses. There is a completely inappropriate use of excessive Henry VIII powers. This, as your Lordships will know, is a 584 year-old device, which allowed the King to make and unmake any laws he liked by proclamation. That ancient power now rests with Ministers, who can use affirmative and negative resolutions to rewrite or abolish Acts of Parliament. Criticism of Henry VIII powers goes back to 1929 when the Lord Chief Justice, Lord Hewart, criticised them in his book, The New Despotism. If he thought that it was a bit despotic then, I think he would struggle to find language pejorative enough to describe today’s legislation.

We all agree that Henry VIII powers are necessary at times. However, after the European Union (Withdrawal) Act, where many powers were appropriate, we saw that departmental lawyers were tacking them on to tiddly little Bills. Their only justification was, “just in case”—but just in case of what? If some new emergency arises, both Houses can pass emergency primary legislation in a couple of days. We have all had examples of that. However, we have had examples of Ministers taking the power not just to amend a current Bill and other related, relevant Acts, but any Act of Parliament passed from 1066 onwards. That is utterly unacceptable; any Henry VIII power should always be very narrowly drawn and use the affirmative procedure.

The other worrying and increasing abuse we saw was legislative sub-delegation of power, or tertiary legislation. We see Ministers able to confer power on themselves and delegate it to some other body, which may include a power to amend or repeal an Act of Parliament. These bodies have, of course, impeccable credentials; they may be royal colleges or learned institutes, but they can make rules and regulations which determine the fate of individuals by setting entry standards, fees and procedures. We quote quite a few examples in our report. These laws can have a big impact on citizens, are legally enforceable and Parliament may never see them. We say that conferring legislative sub-delegation of power is potentially a more egregious erosion of democratic accountability than a simple delegation to a Minister to make secondary legislation. We say that any sub-delegation or tertiary legislation must be limited and specific and its exercise must be subject to parliamentary scrutiny, even if simply by laying it before both Houses. There must also be a statutory obligation to consult all those affected, and the delegated powers memorandum should set out the full extent of the power, why it is necessary and how it will be constrained.

We drew attention to disguised legislation. Noble Lords may ask how legislation can be disguised. It comes in various forms. First, there is guidance, which departments call advisory and say that it need not be approved by Parliament. The Department for Education is a serial offender. When I challenged it, for example, on the guidance on the new school uniform legislation, the response was that it traditionally never set out its guidance before Parliament, so why on earth should it start doing it now? No matter how extensive, new or radical the guidance, the arrogant attitude was that the department and its stakeholders knew best and that we in Parliament should keep our noses out of it.

That leads to another excuse for not consulting Parliament. Departments say that they have very wide consultation with professionals, experts and stakeholders who know the subject matter, and are much better qualified to comment on the legislation rather than ignorant parliamentarians. As Adam Smith said,

“People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.”


I suggest that the same can be said of experts and stakeholders, whose common interest may not be that of the ordinary person.

The other rapidly increasing trend has been guidance which one “must have regard to”. To all intents and purposes, this is treated like statute law by those who must have regard to it. Noble and learned Lords will rightly say that it is not legally mandatory. One can disregard it, provided that one has had regard to it in the first place, and then come up with impeccable, judicial review-proof reasons for disregarding it. However, in reality, 99% of people and organisations will treat it as mandatory, because that is the impression given in the guidance. It is in the spin of the government press releases which accompany the guidance, and people are simply afraid not to follow it. That is legislation in disguise.

The final bit of disguised legislation that we encountered was guidance or rules which were called lots of fancy names to hide the fact that they should have been statutory instruments. We came across instructions called “determinations”, “protocols”, “directions”, “arrangements” and even “public notices.” The last one was dear old Henry VIII’s Proclamation by the Crown 1539 Act in a new form. However, this time the proclamation of the new law by the Treasury would be published in the Times and the London Gazette.

Noble Lords may ask why all this matters. It is not just some esoteric parliamentary debating point. The way in which our laws are made have profound effects on everyone in the country. Delegated legislation is essential to run the country, but it should be open, transparent, debated and not disguised. The excuse that excessive delegated powers are needed because Parliament cannot move quickly enough has been proved false on many occasions, not least by Parliament’s reaction to Covid legislation. However, our committee did not stop at pointing out what was wrong. We attempted to provide solutions.

We said that we must challenge the culture of Whitehall. Making laws is a democratic process, not just a functional legal exercise for clever lawyers in the Office of the Parliamentary Counsel. We called for the Cabinet Office Guide to Making Legislation to be rewritten. This is the bible that legal drafters have to follow. The part on delegated legislation was not fit for purpose and deliberately directed young drafters to follow the easiest way to bash through secondary legislation without Parliament considering it.

We drafted a revised guide which puts parliamentary democracy at the heart of decision-making when drafting laws and we set out some principles, the first of which is that our democracy is founded on parliamentary sovereignty, the rule of law and the accountability of the Executive to Parliament. We said that, where any provision in a Bill delegates legislative powers, departments must satisfy themselves that the delegation is framed in a way that takes into account, to the fullest extent possible, the principles of parliamentary democracy, especially Parliament’s ability to scrutinise it.

So that is what we said. What have the Government done since we reported? Well, to be fair, they have rewritten the Cabinet Office guidelines and incorporated some of what we said, but it is not really in the form of instructions to the 50 to 60 drafters in the Office of the Parliamentary Counsel. It says that the Delegated Powers Committee has said, “Here’s some revised guidance, and here’s a copy of it”—but I suggest that there is a subtext that they can take it or leave it. They do not have to follow it. I say that because there is a complete failure in the guidance to understand this House’s concern about delegated legislation and powers.

Section E of this 120-page guidance document, on Bill handling in the Lords, has the wonderful opening line:

“The House of Lords is usually the more difficult House to take legislation through”.


It then lists various spurious reasons for the Lords being difficult. This first of these is:

“The Lords minister and Whip taking the bill through the House is less likely to be familiar with the subject matter of the bill and will require additional briefing.”


We can all chuckle but, quite honestly, I find that offensive and plain wrong. It was my experience in the Commons, and I see it here in the Lords, that Lords Ministers and Opposition spokespersons are usually more able than their Commons counterparts. The Commons can have four or five Ministers in a department to cover the whole brief, but the Lords Ministers are usually on their own, possibly with a Whip helping out on a few amendments, and have to master the whole departmental brief.

So I ask my noble friend the Leader to please tell the Cabinet Office to rewrite this bit of the guide, and explain that the House of Lords is more difficult because we care about parliamentary scrutiny, about excessive powers being given to Ministers and others, about hidden laws, about Acts of Parliament being overturned at the stroke of a ministerial pen, and about skeleton Bills with the details filled in later outside Parliament. It is called parliamentary democracy and that is the only reason both our Houses exist. So the guidance is still not good enough. I accept that much of it has to be technical, but if the 50 or so legal drafters follow it as currently drafted, we will not see any change and abuses will continue.

Just before Christmas, the noble Lord, Lord Rooker, talking about the inappropriate delegated powers in the precision breeding Bill, said:

“It cannot be right for Parliament to abrogate the power. These Bills are drafted by parliamentary counsel. My conclusion from the debates we had earlier this year in January, and will have again next January on Government by Diktat, is that parliamentary counsel should be renamed ‘government counsel’. They are government employees located in the Treasury.”


Well, that is wrong: it is the Cabinet Office.

“They actually act against Parliament, because they constantly draft Bills, following instructions from Ministers, that remove powers from Parliament—not this House but Parliament—and give them to the Executive.”—[Official Report, 14/12/22; col. 713.]


The Office of the Parliamentary Counsel has a duty, in my opinion, not just to draft legislation which is clever and gives departments devious ways to change laws in future without coming to Parliament, but to draft laws with the maximum or appropriate level of parliamentary scrutiny, so that everything which affects the liberty, livelihood and freedoms of the individual is debated or has the chance to be debated—or even seen —by Parliament. That is what is required and nothing less.

The abuse of delegated power is in effect an abuse of Parliament and an abuse of democracy. Our reports will, we hope, be a prompt to strengthen Parliament in the coming years: not the Lords over the Commons, but the legislature over the Executive. We have identified the problem, produced the evidence and offered the solution. We call on the Government to rise to the challenge of delivering real parliamentary democracy. That will be good for the Government, good for Parliament and good for all the people of the United Kingdom. I beg to move.

--- Later in debate ---

[Lord Blencathra (Con)]

My Lords, first, I wish to congratulate the noble Lord, Lord Prentis of Leeds, on his excellent maiden speech, made in the finest traditions of this House. I was particularly grateful for his powerful contributions in our report, which I did not expect from a new Member but am very grateful for. I think I and the whole House welcome and respect those who come to this place after a lifetime of experience, whether in business, politics, farming, trade unions or other trades and professions. In the Commons, I always liked and got on well with Ronnie Campbell MP, who was the authentic voice of mining. Of course, Ronnie voted against Tony Blair a lot, which was another reason I rather liked him. Today, we have heard the authentic voice of the noble Lord on trade unionism, with his vast experience, and I can tell him that, if I am called upon to form a Government of national unity, he shall have a place in my Cabinet. We all look forward to hearing from him again in the future.

Turning to our reports, I too wish to play a glowing tribute to the clerk of both our committees—Chris Salmon Percival. She is the clerk for the Delegated Powers Committee and the Secondary Legislation Scrutiny Committee, and that is handling a massive amount. Every Bill that comes to this place, she and her team handle it—and the thousands of SIs which go through each year. When I came up initially with the idea of this, I had some wild ideas for what we should cover. Chris put it into the sensible structure we have seen in the report. She then spent 12 months analysing in detail and researching, going back to the 1920s and then doing the draft report. She reminded me of the late and magnificent Lord Armstrong of Ilminster. I asked him a few years ago, “Robert, when you were writing up Cabinet minutes, did you write out the details of what the Minister said or just a summary?” He said, “Oh no, dear boy, I wrote out what the Minister would have liked to have said if he had thought of saying it in the first place”. That was rather like my report.

I am very grateful to all 35 Peers who have taken part today. If my sums are right, 34 of them were in complete agreement with our report and the general thrust that we have too much inappropriate delegation of power. I am very grateful to my noble friend the Leader for his largely supportive remarks, within the brief he has to stick to. I rather like to think—I wonder whether other noble Lords agree with me—that if perhaps my noble friend the current Leader had been in his post 12 months ago, we might have had a slightly different response to our report: a more amenable and agreeable one.

I will not attempt to summarise anything today, since I could never do it justice, we would be here for far too long and the speeches speak for themselves. I will pick up just two little points. I rather liked history and thought I was quite good at it. I think I got an A in my Scottish Highers and I knew about Henry VIII. But I can tell this noble House that in my 27 years in the Commons, 10 years as a Minister and four as Minister of State in the Home Office, bashing through a huge criminal justice Bill every year—which your Lordships largely rejected—I never once came across the term “Henry VIII powers”. I suspect that in all Governments—the noble Lord, Lord Rooker, told me this—Cabinet Ministers get to hear of it when a private secretary comes in and says, “Minister, would you sign this letter we are sending back to the Delegated Powers Committee?” “What’s it about?” “Oh, they’re complaining about Henry VIII powers.” “What are you talking about? What are Henry VIII powers?” I am fairly certain that is the case, and I would love to see that proved.

My second point is that we often got delegated powers memoranda that said, “Of course, we’re taking this extraordinary power, but the Minister doesn’t intend to use it, or won’t use it in this way or that way”. We always replied by saying, “It’s not how the current Minister says he or she is going to use it, it’s how the law says it could be used by any future Minister”.

Of course, there is a wider debate to be had on the whole way in which secondary legislation is made, especially now that we are out of the EU. That is a very valid discussion to have, and noble Lords have raised some of the points today. I would love to see that discussion take place on whether we amend SIs, ask the Commons to think again or have a refer back procedure or sifting committee, which worked remarkably well for the EU withdrawal Bill. But our Delegated Powers Committee report is not asking for any of that. I do not want to hear an excuse that our report is rejected because we are opening up a whole can of worms on how SIs are made and government would grind to a halt. All we want is proper scrutiny under the existing system. The worst the Government would have to do with our delegated powers report would be that Lords Ministers would have to do some more affirmative resolutions, either in this Chamber or in the Moses Room. That is not too high a burden to place on government.

I do not want to go through the Leader’s excellent speech in detail, but I am certain that we shall study it in detail in Hansard later. All I will say is that I rather welcome his tone that further discussions are necessary. I will make a suggestion to him—one of two suggestions I shall make. I refer to the 2019 Conservative manifesto, which states on page 48:

“In our first year we will set up a Constitution, Democracy & Rights Commission … and come up with proposals to restore trust in our institutions and in how our democracy operates.”


Of course, that was aimed at human rights law, judicial review and so on, which I now understand are off the table, but I suggest to my noble friend the Leader that we tweak that manifesto commitment promise and have a special Joint Select Committee of our Houses to look at how secondary legislation is done in future. Then the Government could spin it in the next manifesto that they implemented that promise.

I see the noble Lord, Lord Collins of Highbury, smiling. I think I noted that he said that the Opposition were completely in support of our report. I look forward to that firm commitment in the Labour Party’s manifesto.

My final request to my noble friend is this. I would like him to send 60 hard copies of today’s Hansard—not just a link—to every person drafting Bills in the Office of the Parliamentary Counsel. They need to read the real reason why the House of Lords is “difficult”. Perhaps then they will draft laws taking into account our legitimate concerns about parliamentary democracy and proper parliamentary scrutiny—and then they may find that the House of Lords ain’t so difficult after all.