Procurement Bill [HL]

Debate between Lord Blencathra and Lord Hope of Craighead

Committee stage
Wednesday 6th July 2022 Grand Committee

[Lord Blencathra (Con)]

My Lords, it is a pleasure to speak after my noble friend Lady Neville-Rolfe and after listening to the speech of the noble Lord, Lord Wallace of Saltaire. They have gone through each of the individual recommendations of the Delegated Powers Committee’s report and each of the amendments, which saves me having to quote from them as well, so I will speak in more general terms.

I did not speak on Second Reading, because a quick look at this Bill convinced me that the delegated powers report would be worth waiting for—and what a scorcher it turned out to be. Now that I am no longer committee chairman, I can speak more bluntly than I have in the past, even though I might not now get a phone call from No. 10 asking me to form a Government of national unity tonight. I fully support the concept of the Bill, but it is an appalling mess. I exonerate my noble friend the Minister, who had no part in drafting it, but how on earth can officials and the Office of the Parliamentary Counsel—the OPC—spend two years coming up with these shambles where 345 government amendments—my count on Monday—are necessary? However, what concerns me today is not the shambolic drafting but the abuses of parliamentary protocols as evidenced in the Delegated Powers Committee’s report.

Last year, the Delegated Powers Committee and the Secondary Legislation Scrutiny Committee published two reports: Democracy Denied? and Government by Diktat. We produced countless examples of legislation presented to the House with very wide regulatory powers granted without any justification for them, but with the usual excuse: “just in case they might be needed one day”. The reports cited “skeleton legislation” and clauses where the policy had not been thought through. In addition, powers were being taken to fill in, not just the details, but the general principles which should have been in the primary legislation and not in secondary legislation.

Then we have the negative procedure applied in completely unacceptable cases where the affirmative should be used, such as increasing penalties or charges, for example. Then, of course, we have the dear old Henry VIII powers attached almost automatically now to almost every Bill without any thought. No, I correct that—the thought among Bill teams and drafters is that the department can change any primary legislation it likes in future without having to go through the hassle of producing new primary legislation and getting approval for it. What a marvellous “Get out of jail free” card this is: change any legislation at the stroke of a Minister’s pen.

In this Bill, the Delegated Powers Committee has drawn attention to all these gross abuses and—let us face it—they are abuses. Just because Governments have got away with treating Parliament with contempt in the past does not mean that this should be the norm. I will quote only one paragraph from the Delegated Powers Committee’s report. Before doing so, I note that the committee is not hostile to this Government or any Government; indeed, it is now chaired by one of the longest-serving Commons Conservative Chief Whips in history, and so it is not a partisan committee. Paragraph 7 says:

“This report identifies multiple failures in the Memorandum to adequately explain and justify very broad delegations of power which enable implementation of significant policy change by delegated legislation. This would give us cause for concern at any time but is particularly disappointing as it comes so soon after the publication of our report, Democracy Denied? The urgent need to rebalance power between Parliament and the Executive, in November 2021, and of revised guidance for departments on the role and requirements of this Committee.”


The new guidance by the Delegated Powers and Regulatory Reform Committee was circulated to all departments, and, in the first week of January, I personally wrote to every Minister and every permanent secretary giving them copies of the revised guidance. This is a Cabinet Office Bill, so I want my noble friend the Minister to go back to the Cabinet Office and call in Simon Case, the Cabinet Secretary, Alex Chisholm, the Permanent Secretary, and Elizabeth Gardiner, the First Parliamentary Counsel, and ask them why they seem to have deliberately ignored every word of the guidance with which they were issued.

Worse than that, they have reneged on their promises to the committee. In the response to our report, they said that the Government agreed that the statement of principles of parliamentary democracy set out in both our reports should be included in the Cabinet Office’s Guide to Making Legislation. We reported way back last December, so they have had five months to adjust the Bill taking that into account. Why have they not done so?

The Government agreed that the routine use of just-in-case powers was not appropriate, so why include them in the Bill? They agreed that guidance should not be used to create rules that must be followed, should not be relied on for interpretation of legislation, and should describe the law accurately. They said that the Cabinet Office’s Guide to Making Legislation would be strengthened to reflect the committee's revised guidance. Will my noble friend the Minister ask why that has not happened? I am tempted to ask the non-executive board member, the noble Lord, Lord Hogan-Howe, to maybe conduct an investigation into the Cabinet Office, but I will keep that in reserve.

Of course, the Government justified skeleton legislation, Henry VIII powers and the negative procedure even when there were alternatives that would not subtract from the thrust of the legislation. Not one single item in any of the DPRRC reports would stop any Government of any persuasion driving through their programme. At worst, it would mean a Minister—usually a Lords Minister—perhaps having to do a few more 90-minute SI debates.

I conclude with something the Government did agree on. They welcomed the end-of-Session report that the Delegated Powers Committee said it would produce. The committee has now produced the first end-of-Session report, even though it covers only half or less than half of the last Session, and it makes for some very uncomfortable reading for some Bill teams and OPC drafters. It criticises the quality of delegated powers memoranda by the Ministry of Justice, and two of those by BEIS and the Home Office each. If we cannot trust the delegated powers memoranda, how can we trust the rest of the departments’ assertions?

The report highlights serious deficiencies in the Health and Care Bill, describing it as

“a clear and disturbing illustration of how much disguised legislation a Bill can contain and offends against the democratic principles of parliamentary scrutiny.”

However, by far the most egregious and insidious example was the Subsidy Control Bill, which had a delegated power which enabled the Government to disapply the Bill’s subsidy control requirements by a direction that had to be kept secret from Parliament. Added to which, the delegated powers memorandum had the effrontery, and indeed the honesty, to justify this absence of parliamentary scrutiny on the grounds of

“the potential for non-approval by Parliament”

—in other words, a risk of defeat.

Can noble Lords believe that? Noble Lords who were on the committee can believe it, because they had it removed eventually. Officials drafted provisions to enact a law in secret and not tell Parliament in case Parliament voted against it. We do not have that in this Bill, but I am quoting some general examples to show how appalling some of the general delegations of power have been.

Of course, Ministers have ultimate responsibility, but we all know that Ministers were not responsible for the 345 government amendments in this Bill. Nor are they the ones who have devised and insisted on inserting all these parliamentary abuses into legislation. I suspect that my noble friend the Minister was as shocked as the rest of us when he was handed this Bill and saw the extent of the completely inappropriate delegation of powers.

I want him to go back to the Cabinet Office and tell officials and parliamentary drafters that if they do not want their names on the list of bad boys and girls when the DPRRC publishes the full report at the end of this Session, they had better bring in the changes on Report, as suggested by the Delegated Powers Committee. They should amend the Bill not only to keep their noses clean but because it is the right, democratic thing to do.

[Lord Hope of Craighead (CB)]

My Lords, I support the amendment in the name of the noble Lord, Lord Wallace of Saltaire, but I have a question for the Minister. As an example of the grouping of paragraphs and sections to which objection is taken, I point out that paragraph 17 of Schedule 2 refers to

“services of a kind specified in regulations made by an appropriate authority.”

The phrase “appropriate authority” occurs in all the paragraphs and measures that are under attack and is defined in Clause 111(1) as meaning

“a Minister of the Crown … the Welsh Ministers, or ... a Northern Ireland department”.

There is no mention of any of the Scottish Ministers.

Building Safety Bill

Debate between Lord Blencathra and Lord Hope of Craighead

Lords Hansard - Part 2 & Report stage
Tuesday 29th March 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I have not spoken in these debates either. I hope, like the noble Lord, Lord Marks, I might be forgiven for intervening very briefly.

I took the opportunity of looking at Article 1 of Protocol 1 shortly before coming into the Chamber today, and at some of the background authorities to which the noble Lord has referred. I agree entirely with his carefully worded speech in every respect. There is, of course, a question of balance and a question of the margin of appreciation and the other technical phrases that he has used, with which I am very familiar, but I think his assessment of all these points is absolutely right. The prospects of a successful challenge really are very remote, and the Government would succeed. I agree with his assessment, and I hope this might be of some comfort to the noble Baroness, Lady Pinnock, in her amendment, and to the noble Lord, Lord Blencathra.

[Lord Blencathra (Con)]

My Lords, it is a privilege to speak after hearing from two such knowledgeable noble Lords. I am tempted to say: let us cut to the chase and go straight to the vote on Amendment 115 and get it over with.

In the meantime, I would like to speak on Amendment 115, which I strongly support, and Amendment 123. I would like to comment on Amendments 155, 156 and 157, and to my Amendments 158, 159 and 163. Before doing that, although I will not speak to them, I was privileged to support Amendment 117 on enfranchising leaseholders, Amendment 124, moved by the right reverend Prelate the Bishop of St Albans, on pensioners, and Amendment 153, moved by my noble friend Lord Young of Cookham.

On Amendment 115, concerned with buildings under 11 metres, I strongly support what is proposed by the noble Earl, Lord Lytton. I hope he presses it to a vote unless my noble friend is willing to accept it. I have heard my noble friend the Minister say repeatedly—and he is largely right—that a building of under 11 metres may be less dangerous than a building of 20 or 30 storeys. I accept that even I could get out of a building of three storeys a bit faster than I could get out of one of 13 or 30 storeys. The risk is lower, but there is still a risk—that is one of the main points: there is still a risk. When we saw Richmond House burn down in nine or 10 minutes, it was horrifying. I hope that, if I was in there and woke up in time, I would have got out, but there might be some disabled people who could not have done so.

There is also an issue of principle. If someone has built a building, whether it is 1 metre high or 11 metres high, and used flammable materials or the wrong materials, they should be made to fix it, no matter how wealthy they are—if it is Abramovich or anyone else. If the building has flawed materials, it should be repaired, irrespective of the height. I appreciate that my noble friend has gone a long way on this and that he has been very kind in telling us at countless meetings that there is a lower risk in those buildings, but there is still a risk. Of course, he also said that the numbers were very small: in that case, if the numbers are very small, it is a small problem to fix.