Legislation: Skeleton Bills and Delegated Powers

Lord Janvrin Excerpts

Thursday 6th January 2022 Lords Chamber

[Lord Janvrin (CB)]

My Lords, I add my thanks to the noble Baroness, Lady Cavendish, for securing this debate this afternoon. I declare my interest as yet another member of the Delegated Powers Committee, and indeed a past member of the Secondary Legislation Scrutiny Committee during the time of the Strathclyde review.

I certainly share the view that abuse of delegated powers and a lack of proper scrutiny of secondary legislation corrodes our system of democracy. There are matters of fundamental constitutional principle involved here, but there is also a good British pragmatic principle at stake. Good scrutiny makes better law. Ignoring Parliament has, I submit, a practical cost. As others have pointed out, Brexit, and more so Covid, have certainly revealed far more widely the nature and effect of this marginalisation of Parliament. Therefore, it is not surprising that this issue is moving up the political agenda, and I welcome the momentum given to it by the two recent Lords reports and by the work of the Constitution Unit and the Hansard Society.

I will make three points, briefly because much has been said already. First, I too commend the noble Baroness, Lady Cavendish, for drawing particular attention to skeleton legislation. It has long been a source of parliamentary concern, and the number of skeleton Bills has grown significantly in recent years. I join in asking the Minister for his views on a “scrutiny reserve”, as proposed in the Delegated Powers Committee report, to allow that committee to take evidence from a Government Minister who introduces a skeleton Bill before that Bill’s Second Reading.

Secondly, as has been widely mentioned, there are other ways in which the Government inhibit effective scrutiny of their legislation by Parliament, including through Henry VIII powers, tertiary legislation and disguised legislation. The Delegated Powers Committee report looks to address some of these practices by a major revision of the Cabinet Office Guide to Making Legislation, not least to emphasise that constitutional principle is more important than political expediency. This suggestion specifically addresses what the noble Baroness, Lady Cavendish, referred to as a growing Whitehall indifference. Would the Minister support this sensible and reasonably modest step?

Thirdly, I join others in thinking that, in this field of delegated legislation, rebalancing this relationship between Parliament and the Executive raises much more fundamental questions, which have already been mentioned. Should both Houses of Parliament make common cause to develop more effective secondary legislation scrutiny procedures? In particular, should some means be found to allow the amendment of secondary legislation, perhaps in exceptional circumstances?

I share the view that there is a rising and, dare I say it, bipartisan tide of concern here. To rise with it, might the Government see any advantage in having a much wider look at this, even among their many other pressing priorities? I wonder whether there is scope to think about a new statutory instruments Act to replace the existing legislation, which, I notice, is as old as I am. The Minister has well-toned and well-honed political antennae. I look forward to his reply, although I fear it may fall short of an epiphany moment.