Preparing Legislation for Parliament (Constitution Committee Report)

Lord Judge Excerpts

Wednesday 12th June 2019 Lords Chamber

[Lord Judge (CB)]

My Lords, I thank everyone in the House for their kindness in allowing me to move about up and down the list. It is always difficult to change your place in the list when you are before some difficult judge, but no one has been too difficult today.

I am speaking to the delegated legislation part of this debate. I do so as a member of the Constitution Committee, on which I have now served for four years, and it has been the most wonderful experience. I want to underline something that is absolutely obvious to us as committee members: when it comes to evaluating the recommendations of a committee such as this and indeed all the committees of this House, it is perhaps worth underlining that in those four years, although we are divided equally into four Conservatives, four Labour, two Liberals and two Cross-Benchers—and we have had different chairmen, the noble Lord, Lord Lang, and then the noble Baroness, Lady Taylor—there has not been a single moment when I as a Cross-Bencher have been able to detect the tiniest, flimsiest division along party lines. There were disagreements but they were nothing to do with party. That should add a proper respect for the reports that have been produced, not just by us but by the various committees in this House. It is very easy to overlook it, and it is easy for the Executive not to realise that the committee reports are cross-party and therefore should carry more weight.

There have been 10 speeches in this debate. As a judge, after 10 I might have said, “I agree and have nothing to add”, and in a sense I do not; I agree with them all. However, behind the courtesies of this debate, the very carefully measured language of the speakers and of the reports themselves and, dare I say it, the carefully measured fulminations of the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Committee, there is a constitutional predicament that we are not grasping. We, by which I mean parliamentarians in both Houses, seem to be on an extraordinary, irrevocable course to vesting the Executive with more power. This is not deliberate; we are not sitting here saying, “Hooray, let’s give the Executive more power”. It is the consequence of the way in which we are failing to address the issue of delegated legislation.

Although “delegated legislation” is two words in one phrase, there are two aspects of it that we tend to see separately but which are actually totally integral to each other. There is the enactment of primary legislation, which empowers the ministerial use of delegated legislation, and then there is our failure to reject the secondary legislation that Ministers subsequently produce. The two stand together. It is obvious that nothing I want to say suggests for a moment that I want to undermine the usefulness of delegated legislation; we obviously have to have it, matters of detail have to be addressed and we have to have procedures to enable primary legislation to be fully scrutinised in both Houses to be implemented and updated. So the problem is not with delegated legislation but with its misuse, and its constant misuse within our constitutional processes.

Our report underlines that there is not just one form of misuse. Let us just look at skeleton Bills. I want to read these words aloud and slowly and then ask a question. They are,

“we find it difficult to envisage any circumstances in which their use is acceptable”.

I would love the Minister to stand up—I know he cannot and will not; he would cause a revolution if he did and, I am sorry to say, none of this would believe him anyway, but it would be wonderful—and say, “That’s it, there will be no more skeleton Bills; we agree”. We say all this, but they still come. I shall come to Henry VIII clauses in a minute, but the report is saying nothing new when it says they are,

“a departure from constitutional principle”.

Would it not be nice if the Minister stood up at the end of the debate and said, “I agree; they’re a departure from constitutional principle, to be contemplated only where a full and clear explanation and justification is provided”.

I am being not forceful but—I hope—direct, because we are very courteous in how we issue our complaints about the way in which the Executive behave. All these different processes, cumulatively combined, undermine parliamentary control of the Executive, full stop. Each of them has been discussed time and again. We always overlook the very simple proposition that if you give power to someone then it will be used and, having given power to them, you are not going to get it back. That applies here as anywhere else. So I want to highlight what I shall identify as the “try-on” approach to legislation, which is one more manifestation of the problem.

The try-on is simply this: “Let’s see if we can get away with it”. For me, the starkest example was the recent sanctions Bill, which proposed that by delegated legislation the Minister should be able to create criminal offences—not fines but criminal offences—punishable by 10 years’ imprisonment, which is a major criminal offence. But what else was the delegated legislation going to allow them to? The proposal was that the Minister should, by delegated legislation, be able to decide what defences there should be. Of course I am glad they thought that there might possibly be a defence to a crime that they had created but, worse, it would have enabled the Minister by delegated legislation to change the rules of evidence for any relevant trial to which the individual was brought, just like that. What is the point of having a criminal justice system? The Minister can say, “Oh, you can’t use that” or “This can be admitted in evidence against you”, although perhaps five centuries have demonstrated the dangers to safety of convictions of admitting it.

So delegated legislation was proposed which would have constituted a remarkable gift to the Executive to interfere with the administration of justice. It was a try-on, and we noticed it. Good. This time we were able to argue against it, and the end result was that the House was horrified and it did not pass, but it was in the legislation as a try-on. Good heavens above, how many times has the Constitution Committee said that the creation of a criminal offence by delegated legislation requires full parliamentary scrutiny? Do not worry about that; just ignore it and stick it in.

On Monday, we debated the courts and tribunals Bill. The breadth of that Bill is quite astonishing. By legislation, if it is passed unamended, a Minister, the Lord Chancellor, will be vested with powers to change the entire processes of family, civil and tribunal justice on the basis of a recommendation made by a committee of which he, the Lord Chancellor, has appointed a majority of the members. Wow. So by delegated legislation, the try-on is that the Executive will be given control over the judicial processes in those courts. I regard it as a try-on because, if not, it is an indication of ignorance of basic constitutional principles, and the relevant department is the Ministry of Justice.

In view of the other things that have been said, I want to say a brief word about Henry VIII. I have gone on about Henry VIII—I refer to the Constitution Committee six years ago. Everyone knows that Henry VIII clauses are a menace but they come rolling along like the Mississippi, except that the Mississippi rolls between pretty well-known banks but in this case the river just grows and the sides are flooded. What attention did anyone pay? I ask this question rhetorically, although there may be an answer to it: when did we last see a Bill in which a power given to a Minister to dissapply or amend existing primary legislation was missing? There must be a robot in every department that sticks this provision in, or maybe it is a consequence of the development of modern technology. “Good heavens, there is a computer, let me press the button—H8, press it”. It does not merely stop at one clause. Sometimes Bills are decorated with Henry VIII powers—festooned with them. It overlooks something rather important. We call them Henry VIII powers because they are unacceptable to us: Henry VIII was an ogre and a menace, so we think that shows how we disapprove of them. However, it overlooks this simple fact: under the Proclamation by the Crown Act 1539, Parliament declined to give him the power to overrule a statute. It expressly stated—it was not by implication—that he had the power to work through proclamations, but not if it interfered with an existing statute—if my memory is right, particularly one passed during his reign, which I thought was a rather nice touch.

I want us all to pause for a moment. Which would we prefer? Would we find a summons to Henry VIII to explain ourselves for some piece of legislation that was going on and to account for it—and our failure to support him—marginally more alarming than a call to visit No. 10 for an interview with Mr Blair, Mr Brown, Mr Cameron or Mrs May? I think we might; but we are giving these powers to the Prime Ministers of our day which the men of the 1539 Parliament were not prepared to give to the dictating ogre who ran the country in theirs. We give powers that Parliament would not give to the great king.

I have a couple of more points. I completely agree with the noble and learned Lord, Lord Mackay, about guidance, but I highlight something which was not covered in our report because we have only just noticed its emergence: a new scheme, or maybe an old scheme revived. You produce a Bill—for example, the Trade Bill. You set it all out in regulations—nine separate regulation-making powers, all based on delegated legislation—but it is not enough, because these are merely “for example” or “among other things”. What is that supposed to mean? “Please, Minister, do what you like”. We have to watch for that and we need to be very alert to it.

I come to the scrutiny process—the second limb. I must try to be moderate about this but the scrutiny process is a nonsense, is it not? It does not happen. It is 40 years since the House of Commons rejected a statutory instrument; not one piece of secondary legislation merited being rejected. I have made plenty of mistakes in the last 40 years and I expect we all have, but, funnily enough, not a single piece of secondary legislation was so deemed.

I turn to the tax credits which were referred to earlier in today’s debate. When this House exercised its undoubted constitutional authority to reject that legislation, it was the sixth time in the last 50 years—not exactly a declaration of independence, was it? But, lo and behold, we had an entire review put into place and we were told that the Lords had interfered with a decision of the Commons. You might have expected the Government to go back to the Commons and say, “Please, just tell the Lords they are wrong”. But the Government did not, so when the Lords rejected it, the Government did not go back for support. The original secondary legislation was a case of, “let us see if we can get it through”. I have looked up to see how much time seemed to have been spent on that legislation in the Commons and it was not very long.

We overlook something else which this is revealing. Maybe the point of the review was just to discourage us from rejecting secondary legislation; but the incident graphically highlights the dangers of giving Ministers power to use secondary legislation. The power exercised by the Conservative Government in relation to tax credits was based not on their own legislation but on legislation enacted when Labour was in power—the Tax Credits Act 2002. Some 13 years or so after a Labour Parliament had given a Labour Minister these powers, those same powers were being exercised by a Conservative Government. The Opposition in this House certainly involved a great number of Labour Peers who spoke against it, which eventually led to its defeat. I cannot remember the specific words they used at the time, but the meaning of their words conveyed that this was a misuse of power—what a lesson to us about the long-term consequences of enacting powers in a Government to use secondary legislation to do almost anything they like, and it was not petty cash that was involved in the issue.

I understand that there are some problems--our system has not caught up with the way we do our work—but in the end, virtually rubber-stamping laws proposed by Ministers exercising secondary legislation powers simply will not do. We have got into the habit of accepting it, and when you become habituated to a situation in which you do nothing or very little, however much you may not like it—even if you do not agree with it—and cease to question, the habit becomes entrenched. We must be hawk-eyed in our scrutiny of delegated legislation.

I have one last point. We are enmeshed in Brexit. Some 10 years from now, Brexit will have come or gone and some of the disappointment the public have in their political processes will have declined; but these powers will still be there. Unless something is done about them, this is what we should shall expect to happen. The public can be very strange in the way the democratic process works. When the public are utterly disillusioned with their political arrangements, as I think they are now, they may vote into power a party of extreme authoritarian views—for the left or the right, either equally unacceptable to us today. But who knows? That new Executive, if elected, will not have to hunt in very obscure corners to find legislative powers necessary to carry out an abhorrent programme.