Legislation: Skeleton Bills and Delegated Powers

Lord Wallace of Saltaire Excerpts

Thursday 6th January 2022 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, this has been an excellent debate and well worth all of us postponing our journeys home—I wish more noble Lords had been here. I hope the Minister will respond, after reflection, in writing to all those who have taken part in the debate about some of the important issues which we have been discussing, as well as, of course, responding to the two committee reports which we are discussing.

We have been talking about both the balance of power between Parliament and government and the quality of policy-making. The noble Lord, Lord Bridges of Headley, remarked that we are facing a good deal of half-baked Bills at the moment. I have certainly read through two half-baked Bills over my recess—the Higher Education (Freedom of Speech) Bill, which is a real mess, and the Elections Bill. I also read the highly critical report of the Commons Public Administration and Constitutional Affairs Committee on the Elections Bill, which was published on 7 December. In paragraphs 48 and 49 it states:

“The melange of delegated powers provided for in this Bill serves to highlight, and potentially adds to, the complexity of an already disparate body of electoral law …The Government should present the draft secondary legislation as early as possible, as committed to by then responsible Minister, Chloe Smith MP, to enable due consideration by both Houses and stakeholders of the proposed secondary legislation that will provide further detail on the purpose and implementation of the Bill prior to that legislation being laid or made.”


As an example of the style of the Bill, I quote from Schedule 6, paragraph 18:

“The Minister may take whatever steps the Minister considers appropriate to promote awareness among qualifying people of the changes made by section 11 to the overseas elector franchise.”


That is the sort of thing that surely has to come out, and I hope the Minister will accept that.

In winding up, the Minister might like to tell us whether the Government will publish this draft secondary legislation before the Elections Bill receives its Second Reading in the Lords, and whether they will also publish their response to this highly critical PACAC report, which concludes in effect that the Bill in its current state is not fit for purpose. If the Government provide neither of these before the Bill reaches us, it will be appropriate, I suggest, for the Lords to rule that the Bill be paused until they have been received. The strength of these Commons criticisms means that there is a case for withdrawing the Bill in its present form and radically redrafting it. I suggest it might even amount to contempt of Parliament to attempt to push such a Bill through as it stands without taking such criticisms into account.

I say to the Minister that I have hard experience of Bills being paused when I was in his position in the Cabinet Office in the Lords. A Bill was paused for several months for extra consultations and it came back considerably improved. I note that at paragraph 39 the Secondary Legislation Scrutiny Committee recommends precisely that for skeleton Bills, saying that departments should be

“pressed into providing illustrative draft statutory instruments before second reading, to show how the powers were intended to be used.”

That, I suggest, should become a general principle: a draft of secondary legislation proposed under a Bill before Parliament should be published before either House concludes its scrutiny on it.

One of the basic rules, which has been quoted already, that any democratic Government should follow is to refrain from pushing through powers for Ministers which they would object to if they found themselves in opposition, with another party in power. Since the last election, this Government have been behaving as if they expect to be in power for a very long time and can therefore afford to reinforce executive power and sweep away parliamentary objections.

The polls now suggest that this is a less likely outcome of the next election than it seemed six months ago. Wise Conservatives should remember that limited government used to be a sound Conservative principle, and that if and when they again find themselves in opposition, they might deeply regret tipping the balance between Parliament and the Executive so far in favour of executive power. I can almost hear the weighty speech that the noble Lord, Lord Strathclyde, would then make about the importance of a strong Opposition and the wisdom of the Government giving way to constitutional objections and reasoned criticisms.

There are contradictions in the Government’s attitude at the present moment in calling for cuts in the policy-making ranks of the Civil Service while pressing forward with a heavy legislative agenda and on centralised legislative powers. That is a recipe for poorer-quality legislation and policy outcomes—of course, so is the increasing frequency with which senior and junior Ministers change positions. There is hardly time for a Minister to learn his or her brief before they move on again, leaving frustrated and bewildered officials to greet their successors.

I mention in passing that both these reports talk about the need to ensure that there are adequate resources for parliamentary scrutiny. That is a point that we should not lose, and I hope that the relevant committees will look into that.

The question of how we get down from the temporary surge of both post-Brexit legislation and the response to Covid is another important matter that we all need to look at. We should be returning to the normal pace of legislative change after this, not allowing the rush of each new Minister deciding that he or she wants a Bill and is going to compete to push it through, with the consequences that the noble Lord, Lord Norton, suggests.

It has been said by several Members—including the noble Viscount, Lord Stansgate, the noble Lord, Lord Janvrin, and others—that Parliament should now assert its right to amend secondary legislation or, at least to start with, to send it back more regularly to the Government to ensure that the quality of that legislation is more carefully examined before it is submitted.

Of course, the concentration of power in London and the weakening of local government in England has increased the pressure on government policy-making and the congestion in parliamentary scrutiny. I note that Ministers now issue detailed guidance to local authorities and parcel out funds to local government in multiple small packages; according to one figure I saw recently, less than £250,000 is being sent out in small packages to various local authorities in some cases. Whitehall and Westminster would be much less choked if more decisions were taken by locally elected bodies, as in other democratic states. Sadly, we have a Government that seem fundamentally to distrust local government.

The House of Lords, in turn, would be less heavily burdened with scrutiny if the Commons was more conscientious in its legislative tasks. I note, for example, that the Commons went through the entire Committee, Report and Third Reading stages of the Dissolution and Calling of Parliament Bill in 100 minutes—scarcely time for any serious debate. We are all familiar with Bills which arrive in the Lords with many of their clauses unexamined in the Commons.

The respective roles of the first and second Chambers of Parliament come into play here, and the importance of the scrutiny and revising role the second Chamber plays in our overcentralised state raises broader issues than we can touch on now. That is a matter for a broader discussion of parliamentary and constitutional reform which our Government promised to launch in their 2019 manifesto but have sadly backed out of. However, we need to tackle those issues, and I suggest that one of our key committees—probably the Constitution Committee—needs to therefore return to the question of the role of the second Chamber, how it should be expanded, and how, as the noble Viscount, Lord Eccles, and others said, we persuade the new generation of Members of Parliament at the other end that we play a necessary, useful and increasingly important role here.