Government and Parliament

Baroness Andrews Excerpts

Thursday 9th June 2016 Lords Chamber

[Baroness Andrews (Lab)]

My Lords, it is a great pleasure to follow the noble and learned Lord, Lord Judge. I know that that very important and provocative question will be studied closely by the Delegated Powers and Regulatory Reform Committee, which is always in the front line when it comes to asking why we accept provisions.

It is a great pleasure to take part in this debate. I want to reflect on the wider issues raised by the second part of the debate’s title: on the need for Parliament to have,

“full details of all legislation that it is asked to consider”.

This is really the question about the relationship between knowledge and power, and is the basis on which we conduct our scrutiny effectively. I raise this question because I have had the privilege of being a member of the Delegated Powers and Regulatory Reform Committee and am now a member of the Secondary Legislation Scrutiny Committee, which is wonderfully chaired by the noble Lord, Lord Trefgarne.

I have had a curious career. I started in Parliament as a parliamentary clerk in the House of Commons and ended up as a Minister in this House, with many parliamentary pit stops in between. I have seen the erosion of parliamentary power from many different perspectives, and have been concerned for a long time while understanding the yearning of all Ministers to grab more power. However, I believe that in the lifetime of this Government we have seen a step change in the pursuit of power.

The debate on the noble Lord’s report became increasingly surreal as each of the four committees wrestled with what was essentially a false premise, as the noble Lord, Lord Lang, has already said—that is, that this House exceeded its powers in relation to secondary legislation and needed to be restrained from doing so in the future. There is a predictable consistency in those four reports’ demolishing of the argument. However, for me, what was equally significant was the noble Lord’s advice to government that they should,

“take steps to ensure that ... too much is not left for implementation by statutory instrument”.

My experience is that Governments have never been very good at drafting legislation, and have certainly got worse. The law of unintended consequences never sleeps. However, there is a difference between things turning out differently because a genuine mistake has been made—Professor Anthony King’s book is full of such examples—and bringing legislation before us which is simply premature, incomplete, obscure, or indifferent to evidence and impact, so much so that we cannot, however diligent we are, advise those who will be affected by it on how the law is actually going to work, let alone warn them or achieve some mitigation. We have already had the examples given several times this evening of the Childcare Act—an egregious example of that—the Housing and Planning Act and the Cities and Local Government Devolution Act, all eclipsed to an extent by the infamous case of tax credits. In fact, on coming into office, this Government signalled their intention to break some basic rules of engagement between Government and Parliament very early on.

I so wish that the noble and learned Lord, Lord Judge, had been in this House when we were debating the then Public Bodies Bill in 2010 and the then Deregulation Bill in 2013. The notorious Public Bodies Bill, which attempted to abolish, remove and restrict arm’s-length bodies entirely through Henry VIII powers, was to an extent stopped in its tracks and we were able to mitigate that. What astonished me was that, in 2013, there was a more outrageous grab for power. Clause 14 of the Deregulation Bill, which was introduced with great brio by the Minister Kenneth Clarke, would have caused legislation that was,

“no longer of practical use”—

in the terms of the Bill—to cease to have effect. He described it as,

“a quick and tidy dustbin”,

and was rather bemused when it was thrown out by the pre-legislation committee.

What is it that we in this House depend on to defend the democratic process and challenge Government? It is principally our two scrutiny committees, but these committees are now routinely faced by departments—aided and abetted by the Cabinet Office—which bring forward skeleton Bills, or “mission statements”, as described by the DPRRC. The Bills create a host of new powers for Ministers, as we have heard. They bring forward regulations that are far removed from technical or administrative issues, although officials persist in defending and describing them as such. They design and implement new policies by introducing new and basic definitions, such as “coasting schools”, in the education legislation; new criminal offences scattered through secondary legislation; and new institutions designed to implement secondary legislation. The fact that so few regulations are ever available for the House to see does real damage, I believe, to public policy and public trust in the process.

Last year, the Government had the excuse that they did not expect to have to introduce a manifesto, and I found that unacceptable. I find it far less acceptable that, this year, we are already faced with legislation that does the same. We may not be able to do much about ministerial power per se, but we should at least be able in this House to insist on transparency, integrity and competence.

Such was the concern of the Secondary Legislation Scrutiny Committee in 2013 to strengthen the ability of the House to challenge inadequate and misleading SIs that it proposed new grounds for reporting SIs for the attention of the House because,

“the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation”.

That is so fundamental. This year, 19% of the reported SIs fell into that category. We have wide frustration, which we have set out in our latest annual report, about the failure to ensure timely, considerate and effective consultation processes, some of which even misreport findings; poor, basically inaccurate Explanatory Memorandums; and minimal or no information on impact. There is a succession of examples that I could refer to, including around the most contentious legislation, such as social security and legal aid, where we cannot form a view as to whether the regulations would operate as intended. We have invited Ministers to come and defend this failure—they all promise to do better; very few of them show that they can.

We have heard a raft of prescriptions as to what is needed. I support all that—certainly pre-legislative scrutiny—and I would suggest that no Report stage should start before we have statutory instruments to discuss. I also urge for better training and support for the Civil Service and Bill teams and an end to the cuts that have debilitated the Civil Service and the quality of advice.

There will always be those who say that nothing will improve because it was ever thus, but I do not believe it. There is a natural tension between Government and Parliament and it is precisely in that contested space that the proper balance between Government and Parliament should be held. That is where the role of this House is at its most critical and why the conversation that we need should be had between both Houses, and be had urgently.