Legislation: Skeleton Bills and Delegated Powers

Viscount Stansgate Excerpts

Thursday 6th January 2022 Lords Chamber

[Viscount Stansgate (Lab)]

My Lords, I thank the noble Baroness, Lady Cavendish, for securing this debate and for the excellent way in which she introduced it. I sense that the mood of the House very much agrees with many of the arguments she made. I am conscious, too, that many Members with great expertise are taking part—we have heard from some of them already—so, in the brief time I have I can make only a few points.

First, secondary legislation is absolutely essential to the running of a modern Government. I fully expect the Minister to emphasise that when he replies from the Dispatch Box, but process and procedure still matter, and we are having this debate because it is the abuse of secondary legislation that is its subject. When the Minister replies, perhaps he could be more explicit about the criteria by which the current Government deem that abuse to be justifiable in some cases and not in others.

It has been at least three years since the Constitution Committee of your Lordships’ House first identified skeleton Bills as a recurring problem, and the history of this issue goes back many years. What we heard today made me feel that not only would I have liked Henry VIII to have taken part, but Thomas Cromwell would have been an advantage.

Just before Christmas, I went to speak to a secondary school. I deliberately brought with me these two excellent reports, because I wanted to make sure that those sixth-formers discussing the British constitution were aware that it is not solely the rose-tinted version of parliamentary accountability so often portrayed. They were very intelligent sixth-formers, and I wanted them to know that parliamentary scrutiny of the Executive is creaking at the seams—that is putting it mildly.

For how much longer can we assert that Governments are effectively held to account by this mother of Parliaments? For how much longer can we promote our current system as a role model? The direction of travel is more than worrying. Parliament is losing power to the Executive, and power in the Executive is gradually being concentrated in Downing Street. Within Whitehall, power can pass from elected Ministers to unelected civil servants. Skeleton Bills benefit the Whitehall machine in so far as the details filled in later give the Civil Service, rather than Ministers, more of the opportunity to shape and preside over the detail. I note with great interest what the noble Lord, Lord Blencathra, said about the new nomenclature used to describe the many different ways in which secondary legislation is used.

Meanwhile, of course, Ministers are not subject to the scrutiny they should be at the Dispatch Box. If something goes wrong, which occasionally it does, the chances are that the Ministers originally responsible have moved on and hence escape the kind of scrutiny that taking a substantial Bill through Parliament would entail.

I was particularly interested in one point in the Financial Times article by the noble Baroness, Lady Cavendish: that the Government do not seem to wonder what others might use these powers they are creating for. It reminded me of 1972 and the Heath Government, who passed the Industry Act in that year. For a free-market Government, they introduced considerable powers over industry. I remember it well; it was described at the time as “Heath’s spadework for socialism”. I mention it now only to emphasise the point that the noble Baroness made to the government Benches: one day they may feel slightly differently about what is being done, because there are precedents that they might come to regret.

When it comes to the remedy, I say only—as my time is up—that it is clearly time to consider our power to amend statutory instruments. I fully endorse the excellent recommendations made and very much hope that fair-minded Members on all sides of the House will agree that that is one way forward: not the wholesale rejection of SIs but selected amendments.