Democracy Denied (DPRRC Report)

Lord Judge Excerpts

Thursday 12th January 2023 Lords Chamber

[Lord Judge (CB)]

My Lords, I welcome these reports, as I have welcomed reports produced by these two committees and the Constitution Committee before 2021-22. I particularly welcome the unequivocal language in which these reports are expressed; there is no way that anybody can misunderstand their meaning. I also welcome the support on all sides of the House for what the reports have said, and in particular for the two speeches by the leading protagonists.

But at this stage of the afternoon, I want to ask myself a different question: what is the total sum? I do regret that the total sum seems to add up to the very distinct possibility, though it is not particularly underlined in the reports, that increasingly we are being governed by proclamation. Of course, we wiped out government by proclamation when the Stuarts were here, and there are many proclamations which are fine—there is a proclamation every time you drive past a speed limit sign, which tells you “That is the limit, that is the law”. When we are told to wash our hands more than three times a day for 20 seconds or more, that is advice, and there is nothing wrong with proclamations that set out the law or government advice.

The problem is where the Government of the day set out the sort of issue that arose during the Covid pandemic, “How do we deal with it?” I am not going to enter into the argument about it, but it undoubtedly was government by proclamation. The real question is, “What sort of proclamation rule do we have?” I am taking a word which has been used quite a number of times this afternoon; we have proclamations in disguise. The disguise is the parliamentary process. The parliamentary process, if you take every word down to its last theory, provides a perfect controlling system by which secondary legislation—statutory instruments—is controlled.

We all know that it does not work like that, and the reason we know that it does not work like that is twofold. First, when was the last time the House of Commons, which after all produces this material for us, actually rejected a statutory instrument? Gazillions of thousands of pages have been produced, but the last time was in 1979—is that a form of control being exercised? Then you have the other side of the same coin, which is, “Why do the Executive continue to do it this way?” The short answer is, “Because it’s very friendly to do it that way, and because the controls that are supposed to be available are not being deployed.”

I want to draw the House’s attention, really by way of summary, to the latest piece of legislation coming our way, the Transport Strikes (Minimum Service Levels) Bill. It is a skeleton Bill with a supercharged Henry VIII clause, and it illustrates my point. The first clause is on “Minimum service levels for transport strikes”. It is actually declaratory and does not make any law at all. It is misleading, because in paragraph 4 of new Schedule A2A, you will find that there are relevant matters relating to health, national security, social care, education, the economy and the environment, and that:

“The Secretary of State may by regulations amend this paragraph to change the matters that are relevant matters”,


so they can just add to this list.

I should interrupt myself to say that I am not making any comment on the value or otherwise of this proposal; I am looking at it as a piece of legislation. Clause 3 tells us its extent, Clause 4 tells us its commencement and transitional provision, and Clause 5 tells us its Short Title—that is it. There is one real clause in it: Clause 2, about the “Power to make consequential provision”. Hang on a minute: about what? The Secretary of State

“may by regulations made by statutory instrument make provision that is consequential on this Act”,

and:

“Regulations under this section may amend, repeal or revoke provision made by or under”


an Act passed

“before this Act, or … later in the same session … as this Act.”

This is an important piece of legislation. We have all read the Government’s response to the two reports we are discussing this afternoon, but I do not see any link whatever between those responses and this legislation. We cannot go on like this.