Democracy Denied (DPRRC Report)

Lord Collins of Highbury Excerpts

Thursday 12th January 2023 Lords Chamber

[Lord Collins of Highbury (Lab)]

My Lords, this has been an excellent debate. I start by thanking the chairs of the committees, the noble Lords, Lord Blencathra and Lord Hodgson, for their excellent introductions. I also want to thank all members of the committees for their hard work in producing these reports. We have heard that both committees collaborated closely, producing parallel reports and holding joint evidence sessions.

Crucially, as we have heard this afternoon, the overwhelming message is that the abuse of delegated powers is, in effect, an abuse of Parliament and of democracy. Despite the response from the Government, these reports, as the noble Lord, Lord Blencathra, reminded us, will be a prompt to strengthen Parliament in the coming years.

It is worth repeating the words of the noble Lord, Lord Hodgson. This is not a debate about Lords versus Commons; it is a discussion about how we strengthen Parliament. I will not be tempted to comment on what we might be able to do in Opposition and then as a Government. The fact is that our democracy is a parliamentary democracy, and it is how we strengthen Parliament that is now most important.

The conclusions of the DPRRC report are that it is now a matter of urgency that Parliament should take stock and consider how the balance of power can be reset. As it says, far too often primary legislation is being stripped out by skeleton provisions and, with the inappropriate use of wide delegated powers, it is increasingly difficult for Parliament to understand what legislation will mean in practice and challenge its potential consequences. We have heard numerous examples from across the House of such legislation being put before us, including Bills that are currently before the House.

Importantly, the committee’s report refutes the argument that parliamentary legislative procedures cannot respond swiftly to address urgent, unforeseen situations. As part of my responsibilities as shadow FCDO spokesperson, I have been involved in work on the war in Ukraine. We worked with the Government to ensure a speedy response to a very difficult situation. It did not avoid parliamentary scrutiny, but meant working collaboratively to address the urgent issues. Of course, both Brexit and the pandemic are other good examples of that.

The committee’s analysis of the historical account of delegated legislation shows there have been times when the Government of the day have been impatient of parliamentary legislative constraints. However, as the noble Lord, Lord Norton, says, Parliament rightly demands patience in fulfilling its most important role: making our laws—and making them good laws.

One of the things that I have done is work with the noble Lord, Lord True. We have had debates on Bills before this House in which we have pointed out that clauses had unforeseen consequences. To be fair to the noble Lord, Lord True, he has supported the Opposition in taking clauses out of Bills where that has happened, and I thank him for that. It is important that, in this debate, when we are critical of our procedures and of some of the things that the Executive do, we stress the importance of the work of this House and how well we do it. I do not accept that we do not force the Government to change—because we do. More often than not, 90% of the changes that we make are not via votes and defeating the Government; they are by winning the argument and making the case, which sadly does not happen too much down the other end. But we do it here, and that is really important.

The recommendation in the SLSC report that Parliament and the procedure committee should follow a special procedure for skeleton Bills with substantial delegated powers was rejected in the Government’s response. They argue that Parliament is able to consider each Bill on its own merits, and agree or disagree to delegating powers. In reality, of course, the ability to do this limited. As the DPRRC noted:

“The limits on Parliament’s ability to intervene in delegated legislation places an even greater significance on ensuring the appropriateness of the delegation in the first place.”


The tax credits situation is a really good example of that. It is also a good example of where we did not use our powers to push down something; we used them in an innovative way to say to the other place that it should think again. The problem that the Government of the day had in that situation was that they were not confident that they would have a majority in the elected House. Our role was not to abrogate the responsibilities of the democratic House; it was to say to the democratic House, “Here you are; think again”. That House was prepared to think again and changed its mind. That is the important thing in this debate.

The Opposition supports these committees’ recommendations. Substantive components of policy should be decided and presented via provisions on the face of a Bill, not devised and introduced by secondary legislation after a Bill becomes an Act. We have had many examples of that recently. I hope that the Minister could, at the very least, consider consulting on the merits of creating a new procedure for skeleton Bills. I hope that there will not be a closed-door situation here. The Government’s response to date on the recommendation that there should be fewer cases of poor practice and the improper use of secondary legislation and guidance is not convincing. Departments need to improve their efforts to ensure that a clear and appropriate distinction between legislation and guidance is maintained. The pandemic highlighted the inadequacies of this process.

The SLSC was not convinced by the answers it received in evidence about why sunset clause provisions are not used more often as a matter of good practice. I have moved amendments myself in recent times on why a sunset clause would be appropriate. The Government could now, of course, also consider a greater use of various forms of sunset clauses, such as a sunset and renewal clause.

In the Government’s report The Benefits of Brexit: How the UK is Taking Advantage of Leaving the EU, the Government said that they would

“provide guidance to departments on the use of sunset clauses in regulations and Legislative Reform Orders, including when they should be used”.

I would welcome the Minister sharing this guidance with the House, so that it could be formally reviewed. I realise that it may already be available, so I would welcome the Minister writing to me about it, particularly on the circumstances in which the Government consider sunset clauses should be used.

I am running out of time. I wanted to address a number of issues, particularly with regard to Henry VIII powers. Perhaps the Minister could tell us what progress has been made towards the DPRRC contributing to the Office of the Parliamentary Counsel delegated powers training sessions. As noble Lords said, this is a debate where we do not have to wait for legislative change. There is policy and practice that we can influence, which is why it is so important that these committee reports are reviewed properly on a regular basis.

My noble friend Lady Armstrong mentioned the importance of civil society. In fact, a lot of our work in reviewing legislation involves engagement with civil society and how we hear other voices. Here I take the opportunity to congratulate my noble friend Lord Prentis on his excellent maiden speech. That speech highlighted that our work is not limited to listening to ourselves; it is about how we reach out to communities, and support and confidence in our democracy is about how we engage with our communities. One of the things I have heard is about how we take back control. Certainly, taking back control is about how we empower our communities; how do we ensure that power is devolved to our communities and our towns and cities?

I conclude by saying that I have read the Hansard Society’s initial recommendations, which are due to be published, and I certainly think, like my noble friend Lord Hendy, that a new concordat between Parliament and government that sets out principles of legislative delegation would be a really good starting point. I hope the Minister can support the principle of that being adopted.