Strengthened Statutory Procedures for the Scrutiny of Delegated Legislation: DPRRC Report

Baroness Andrews Excerpts

Tuesday 5th March 2013 Lords Chamber

[Baroness Andrews]

My Lords, it gives me great pleasure to participate in this debate and I congratulate the noble Baroness on having secured it. I support what she said about the excellence of our report and thank her for the comprehensive way in which she set out the background to the report. It is a pleasure to serve under her wise, inclusive and very firm leadership. I must ask the forgiveness of the House if I cannot stay for part of the debate, but I shall be here for the end. The business of the House has gone slightly awry this evening.

Like the noble Baroness, I shall say a few words about the context of statutory instruments and their role in policy. In terms of parliamentary architecture, it is obvious that the DPRRC was a hugely important innovation in the bastion of parliamentary scrutiny. It is a model of scrupulous attention and is unique. It concentrates the minds of Ministers and departments very well. I remember, as a departmental Minister, the collective groan that would go up in the department if the DPRRC recommended that we change a negative to an affirmative instrument. We were always very conscious of the tightrope we trod. We listened, and for good reason, because essentially what impacts upon people’s lives in terms of legislation is not primary legislation but the statutory instruments. I once saw a statistic—I cannot stand it up but others may be able to—that 80% of the laws as they impact on individuals are transported through statutory instruments, whether that is welfare benefits, food safety, planning requirements or competition across the NHS. The trouble is that few people outside Parliament are au fait with the way that statutory instruments work or are debated. We should try to address that obscurity.

Secondary legislation serves government well. It served Henry VIII well and consolidated his powers of dictatorship. It serves his successors well, too. Sometimes, there is no mistaking the Government’s intention. There are those of us who still clearly remember the Public Bodies Bill, where the Henry VIII powers were used so blatantly and deliberately that they shocked the entire cast of the DPRRC to its core. The committee and this House brought the Government to book on that.

More often, Ministers argue rightly that secondary legislation is simply a practical solution to implementing change in an uncertain world. It enables flexibility and reflects a willingness to respond to changing circumstances. There is the impossibility of loading all the detail, implementation and enforcement into primary legislation. Yet that is a secondary weakness. In the interval as we waited for this debate to start, I added up the number of SIs that have been and will be before the House between 27 February and 19 March. There are 38 sets of regulations in that short period, with six yesterday in the Moses Room.

The irony is that while much of the effort goes into writing and rewriting Bills, not least in response to egregious errors, secondary legislation, which requires enormous care and attention to detail, tends to suffer from the lack of both. It is also a victim of time. We have lost count of the number of times we have desperately needed regulations before this House before the Report stage of a Bill, only to be told that we could not have them because they were in draft and officials were working hard but could not produce them.

It is for this reason that I am a firm supporter of the recommendations made by the Goodlad committee, on which I had the honour to serve, to improve the way we make legislation, train Bill teams and discuss the issues with draftsmen. Our task in the committee is to determine whether the level of delegation is right. As the noble and learned Lord, Lord Mayhew, said, tempting though it is to trespass into policy, we are always brought firmly back to the point that that is not our business. But we should ask the following questions. Have Ministers taken too many powers unto themselves? Is that deliberate or accidental? Is the level of delegation appropriate? Have the officials really thought about the alternatives?

Most of the time, as we find, delegation is appropriate. However, given the various scrutiny procedures and the variations they impose, as documented in the report, it is not surprising that this House, let alone Bill officials and draftsmen, gets confused. Sometimes, the Explanatory Memoranda that come before us are disingenuous in terms of the arguments about the level of delegation proposed. Sometimes, for example, departments misunderstand, wilfully or not, the role of precedence. Sometimes it seems that the subtle difference between negative and affirmative regulations, or the justification for the most severe of regulatory structures—the super-affirmative—have not been sufficiently on the departmental radar. No wonder that our report calls this a,

“complex patchwork of procedures”.

While reflecting on that, we have been provoked by more recent and specific changes that have introduced yet more variations and at the highest levels of the Henry VIII procedures. The noble and learned Lord, Lord Mayhew, said that we must not be churlish. I do not want to be churlish because we welcome any enhanced role for Parliament. However, the new variations are simply, and as we describe them, frankly, unhelpful. They confuse an already confused picture. The report lists the variations in terms of primary legislation, the multiplication of different models, the variation of procedures and the delegated weight, and the inconsistency in requiring whether supporting documents should be laid before Parliament. Equally frustratingly, an uncertain vocabulary adds another layer to that bank of rolling fog. We have super-affirmative versus enhanced and varying terms for the responses that are required to committee recommendations.

At least the Government agree with us that the muddle must stop. Like the noble Baroness, Lady Thomas, I am grateful that the Government see the need to stop improvising, to resist the temptation of making any more new variations to an existing and strengthened procedure, and to introduce consistency by undertaking to lay supporting documents setting out the detail of and rationale for any proposed orders under Section 19 of the Localism Act 2011.

However, that sensible response is, for me, overshadowed by the fact that, as noble Lords have said, there is genuine uncertainty about the future use of LROs—the most draconian of all forms of delegated legislation. The previous Government established the convention that LRO procedures would not be used to force through controversial legislation or when a scrutiny committee of either House had opposed the proposition. Why have the Government apparently refused to honour this? Why are they so silent on that point? What is so difficult about that aspect of accountability and good government? That is bound to raise suspicion, perhaps for the wrong reason.

I am bound to say that my fears have been compounded by the evidence that the Government are trying to reduce consultation procedures. Where does this sit with Mr Francis Maude’s commitment to greater transparency and open government? When will the Government learn that, in the long run, it is infinitely better to take people with you than to press on regardless of how those who are affected by the legislation see it and will have to implement it? I hope that the Minister can give us some reassurances today.

Finally, under “any other business”, I want to support what the noble Baroness, Lady Thomas, said about the way in which Parliament deals as a whole with affirmative resolutions. There is no doubt that the present situation is deeply unsatisfactory for everybody. The choice between a debate on unsatisfactory regulations where not even the most perverse consequences can be ironed out, challenged, or removed, and the cliff edge of a fatal Motion which wrecks the entire process, the good bits and all, serves no one. It does not serve the Government, who may have to retrieve their mistakes months later; it does not serve the credibility of Parliament, whose job it is to help get legislation right; it does not serve the purposes of this House; nor does it allow us to undertake our specific responsibility to make government think again and think carefully. That is what we do. It certainly does not serve people in the community who have to live with the consequences. We need a third way: an opportunity to nudge government without humiliating Ministers; an interim stage to consider regulations on the understanding that the Minister can take them away to rethink them. It might be a counsel of perfection in some cases—some regulations one would not want to see ever again—but, nevertheless, it would make for better law and, often, more humane solutions.

I hope that the Procedure Committee will listen very hard to what is said in the Chamber and act on it. I conclude by congratulating the committee on a good piece of work. I thank our clerk again for initiating it and I look forward to the Minister’s response.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, I approached this debate with considerable trepidation. When I first came into this House, I was told by several people that, after the Clerk of the Parliaments, the greatest expert on all matters of procedure was the then head of the Liberal Democrat Whips’ Office, Celia Thomas, who is now my noble friend Lady Thomas of Winchester. When I started to read into this subject, I discovered how little I understood about the processes of scrutinising secondary legislation and, indeed, about the difference between a remedial order and a legislative reform order. I now understand, and I hope I still will in a week’s time, but it has been a journey of exploration.

This has been a very useful debate, and I start by agreeing with the noble and learned Lord, Lord Mayhew, that this is a success story. What we have seen in this Chamber over the past 20 or 30 years is a gradual rise in its effective ability to give scrutiny. As a young academic, I was an adviser to Lords and Commons committees and I discovered that Lords committees were much more serious in many ways than Commons committees and much less partisan. Members had read their papers, they came and they asked about paragraph (15) and what precisely the Government thought they meant by it. That is, as the noble Baroness, Lady Smith of Basildon, said, a different function from that of the Commons, but it is a very useful function. We should be very proud of it and cling to it.

Much of the best work this House does is done in its committees, and I hope that will continue to be the case. There is a necessary tension between the Executive and the legislature and listening to this debate I was thinking that much of the press comment on British government is a matter of seeing a conflict between the Government and the Opposition, but there is also a very positive, necessary tension between the Executive and the Legislature, whatever that may be. We play our role—the Cross-Benchers and others in this House—by providing the detailed scrutiny that does not get on to the front page of the Daily Mail but does improve the quality of legislation. For that reason, I have more sympathy for the suggestion from my noble friend Lady Thomas of Winchester that we should move towards looking at draft SIs than for the Goodlad proposal that the House should assert its right to vote down. As the noble Baroness, Lady Smith, said, that should be regarded as the reserve option, the exceptional circumstance. Greater dialogue with the Government about progress on SIs is a much more effective way to influence.

When I first came into the House of Lords, I was asked what I thought the power of the Lords was. After a bit, I said, “I think it’s the power to embarrass”. That is quite an effective power in the dialogue we have with Ministers. The power to publish and to whisper to a visiting journalist that this Minister has not really got it right yet are quietly effective in the corridors of Whitehall, and that is the way this Chamber should operate.

A number of noble Lords suggested that the number of SIs and the area of subordinate legislation are growing. I am pleased to say that, from looking at the statistics, that is no longer the case. In the legislative year 2007, nearly 1,200 SIs went through. In 2011, there were some 750. Cynics might suggest that the longer Governments are in power, the more they are likely to resort to SIs. If that should be the case and this Government stays in power for long, I trust that Members of this House will point that out and keep Ministers up to the mark.

I have some sympathy with those who say that slower government is better government and that less legislation is better legislation. The problem, which we all recognise, is that in an era of 24/7 media and of lobbies insisting that Ministers should take on everything they are lobbying for, it is very difficult for Ministers to resist those outside pressures. It is thus up to Parliament to keep pushing back and saying, “Think about proportionality. Think about whether this is necessary. Think about whether this is desirable”.

I am fascinated—I now at last understand this aspect of Henry VIII powers. I thought when I first heard about Henry VIII powers that they were a way of keeping numbers in the House of Lords under control. I have sometimes wished that they might be reintroduced as a means of keeping the numbers down and allowing new blood to come in, so to speak. Henry VIII powers are clearly something we always wish to question. The question of how clear Governments should be about the implications when they put new legislation through is something we can accept as desirable in terms of good legislation. The Government accept all those criticisms and the House of Lords will, I hope, maintain its effort to keep the Government, of whatever variety, up to the mark.

The noble Baroness, Lady Andrews, incidentally, suggested that 80% of legislation consisted of SIs. I am not sure where that statistic comes from. If the noble Lord, Lord Pearson of Rannoch, was here he would say, of course, that 80% of legislation was forced on us by the European Union. I suspect these statistics are both a little—

[Baroness Andrews]

My Lords, I was saying that it has been calculated that 80% of the impact on people comes via SIs, not that 80% of legislation is made through SIs. That is why I find it difficult to source. I will try to find a source for the Minister.

[Lord Wallace of Saltaire]

I understand. This was an extremely valuable report, in particular for pointing out that we have wandered into a situation where there is considerable diversity—indeed, almost a confusion—of different sorts of arrangements under secondary legislation. I can imagine how these will have grown up with Ministers from different departments making specific concessions on different Bills. The committee is quite right to say that we should exert pressure to bring things back to as common a model as possible.

The former Leader of the House, my noble friend Lord Strathclyde, wrote to my noble friend Lady Thomas last November, accepting the committee’s conclusion that, wherever possible, existing procedures for enhanced scrutiny should be used. In his response, which I have deposited in the Library, my noble friend noted that there may be exceptions where existing procedures are not suitable, but where the Government sought to create a new procedure they would clearly set out the case for doing so.

The committee’s report also invited the Government either to set out the case for not requiring supporting documents to be laid with draft orders under Section 19 of the Localism Act 2011—to which a number of noble Lords have referred—or to give an undertaking to lay supporting documents when laying any draft order under that section. I can confirm that the Government have given an undertaking to produce material setting out the detail of, and the rationale for, any proposed order under Section 19 of the Localism Act 2011, and to provide relevant background to support the parliamentary process.

The committee’s report also looked at orders made under Section 14 of the Legislative and Regulatory Reform Act 2006. We welcome the recognition that the existing scrutiny procedures for 2006 Act are robust. The committees scrutinising such orders can choose which scrutiny process should be used. They also have the power effectively to oppose any highly controversial measures. Ministers are obliged to consider the committees’ recommendations and cannot easily set them aside. They would need to persuade the whole House to overturn any recommendation by a committee to reject an order.

In practice, any legislative reform order that has been identified as highly controversial during the consultation stage has been withdrawn. Some measures have returned with increased scrutiny in a Bill. Neither committee has ever felt the need to exercise its veto when considering draft orders. This is why the Government have not felt the need to renew the undertakings given by the previous Administration. This is not a change of policy. The undertaking was given by the previous Government in 2006, at a time when it was not clear how the powers in the Act would be used. It is now clear that the process of bringing forward draft orders and the scrutiny process has worked well. However, I recognise that some noble Lords have strong views on this issue, so we are willing to take it away and consider it further.

The Government believe that legislative reform orders are important tools to reduce burdens on business, taking forward deregulatory measures that do not fit into other legislative vehicles. The report also touched upon orders made under Section 85 of the Northern Ireland Act 1998, Section 102 of the Local Transport Act 2008 and various orders made under sections of the Local Government Acts 1999, 2000 and 2003. Some of these have been rarely, or never, used. Section 85 of the Northern Ireland Act has been infrequently used and, following the devolution of policing and justice in 2010, its use is likely to decline further. No orders have been made under the powers in the three Local Government Acts. In relation to the Local Transport Act 2008, the committee’s report on the original Bill at the time noted:

“We consider both the delegation and the level of scrutiny proposed for the powers”,

in these clauses “to be appropriate”.

The noble Baroness, Lady Thomas, touched on the mechanism by which we debate and approve secondary legislation, particularly the system of consultation and the time allowed for it. Any changes would of course be a matter for the Procedure Committee. I would not wish to pre-empt its discussions, but I acknowledge the importance of the process of consultation and of having a process which commands public confidence. Again, I will take that back to the Cabinet Office.

There is of course a great variety in the significance of secondary legislation laid before the House. It is worth remembering that Parliament itself delegates powers to Ministers and, advised by the DPRRC, decides which form of scrutiny—negative, affirmative or super-affirmative—is appropriate for any particular delegation. In addition, a significant proportion of secondary legislation is already published in draft, with the consultation process beginning long before instruments are laid.

The noble Lord, Lord Butler, suggested rationalisation of the committee structure and greater use of Joint Committees. I think a number of us would want to take that away and think about it further. I am more persuaded by the arguments of the noble Baroness, Lady Smith, about the different functions of the two Houses. My limited experience of serving on one Joint Committee suggested that the two Houses do not always blend terribly well. A great deal depends on the subject. To the credit of this House, we tend to approach things in a less partisan and more detailed manner. Perhaps there is an argument that maintaining a degree of duality may therefore be functional.