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.

Strathclyde Review

Baroness Andrews Excerpts

Wednesday 13th January 2016 Lords Chamber

[Baroness Andrews (Lab)]

My Lords, I sought to speak in this debate for one specific reason. It has been my privilege in recent years to be a member of the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee, as well as of the Goodlad committee. Noble Lords may wonder what I have done to deserve such cruel and unusual punishment, but it has been a genuine privilege to see the way that the House does scrutiny.

I am speaking personally now. I am concerned about anything that might reduce the legitimate use of our powers of scrutiny in this House and diminish the power of Parliament. I believe that the weight of opportunistic changes to our political system, some of which has been rehearsed in the House, has reached a tipping point in terms of executive power and away from Parliament and, with respect, the noble Lord’s review sits at the heart of that. Far from having a quarrel with the other place, we are here today making a defence of Parliament as a whole and its ability to hold the Government to account—a Government who, as many noble Lords have already said, find it difficult to face losing votes. Sometimes they seem to behave as if it were 1796, not 2016. I advise the party opposite to remember that there is an ineluctable law in politics that no Government have an endless shelf life.

Talking of hubris, despite the elegant way in which the noble Lord, Lord Strathclyde, delivered his speech, in 1999 he declared that the convention that this House did not vote against statutory instruments was dead. In 2005, he conceded that it had had a lively revival and was rather robust, but now, awkwardly, the Government have required him to declare it conveniently dead after all, and have charged him with finding a way of resuscitating the patient. The problem is of course that the patient is not actually dead; as we have heard today, it is sitting up and having a hearty breakfast. Unfortunately, that means that the noble Lord’s review started on a false note with a false premise. Since there is no evidence of the excessive use of statutory instruments being rejected in this House, no case can be made for the abolition of our power to veto.

Having been invited to address the wrong question, the noble Lord, not surprisingly, came up with the wrong answer. It appears that we are the problem, with our apparent “failure” to understand the conventions. We are also told that the convention has been fraying for many years; indeed, to quote from the report, it,

“has been stretched to breaking point”.

I know that the noble Lord has a fine sense of irony—we saw it in operation many times when he was Leader of this House—but to say that it is stretching the convention to breaking point for the House of Lords to reject five statutory instruments in 65 years, and four in the past 16 years, itself stretches credibility to breaking point. What is frayed and stretched is the other important and very long-standing convention, the distinction between primary and secondary legislation, which has already been alluded to. As Erskine May itself puts it, the purpose of secondary legislation is to deal with the application of detail. The fact that secondary legislation is increasingly not about detail at all but about the scope, the impact and the implementation of primary legislation and making substantial variations to it is the source of the crisis that this Government have manufactured, and is exemplified by the tax credits regulations.

This is evident in the raft of Bills, some already cited by noble Lords, which have been described by the DPRRC in one instance as simple mission statements. Most notoriously, perhaps, there is the Childcare Bill, which led that committee to say that the delegated powers,

“go to the very heart”,

of the Bill. My experience on both the scrutiny committees of this House leaves me in no doubt that the Government find us a thorough nuisance. Time and again in the past two Sessions the Government have been reprimanded by both committees for excessive and inappropriate use of delegation. We have had to refer back to this House secondary legislation which contains substantial policy changes with substantial impacts—for example, the draft hunting regulations, immigration changes, and universal credit. In this Session alone, 32 SIs have had to be corrected by government after serious flaws were identified and 16 have had to be withdrawn completely.

If we add to that ministerial failure to provide impact statements, or Explanatory Memoranda which do what they are supposed to do, a picture emerges of a Government who not only deliberately exploit secondary legislation and reduce parliamentary scrutiny in the process but are resentful of proper scrutiny. If we were to lose our exceptional power to reject SIs, Parliament would lose a legitimate brake on government excess. However, it would also reduce the credibility of the scrutiny process as a whole and open the gate to greater abuse. What is needed, which the noble Baroness, Lady Hayman, anticipated, is a wholesale review of secondary legislation to remind Ministers of their public duty to be open and transparent about policy and legislation, to be accountable, and to respect—in fact, invite—the role of scrutiny.

Instead, we have the three options before us. We are invited to focus on option 3, which involves a new procedure to be set out in statute which would allow the Lords to invite the Commons to think again when a disagreement exists and to assert its primacy. Sadly, this option raises more questions than it resolves. Where is the timetable which will allow the House of Commons to think again? Where are the provisions for legitimate delay? Where is the guarantee that the House of Commons—either as a whole, or in Committee —would be able to show that it had indeed thought again, by debate, or by vote? Where, in short, is this additional provision for scrutiny which would compensate the House for the loss of our veto?

Many commentators are already alarmed by what this implies. We have heard the Hansard Society quoted. Meg Russell of the Constitution Unit says:

“If a Lords defeat did not trigger a debate, and a full-blown vote, peers could find themselves overridden by MPs who had no clue what they were voting on”.

The reality is that we could end up with the worst of all worlds: having lost important competence in this House but with no extra scrutiny in place.

Finally, when the noble Baroness winds up I hope that she will give some indication of the issues raised by the proposal to legislate for these changes. The legislation, we are cheerfully told by the noble Lord, is likely to be short. That will not stop it being problematic. It will be extremely difficult. Nothing like this will have been done before. I know that the noble Baroness is aware of the pitfalls. I detect a certain wistfulness in the noble Lord’s tone when he says that when the conventions go, Parliament and the people it serves will miss their value. Indeed they will, and they will miss nothing more than the power of this House to have a veto over a Government who sometimes act far too hastily, which is when we save them from themselves.

Care Sector: Apprenticeships

Baroness Andrews Excerpts

Monday 6th July 2015 Lords Chamber

[Baroness Andrews (Lab)]

Is the Minister aware that the RCN has estimated that more than 3,000 overseas nurses currently earn less than £35,000 and are therefore liable to be deported in 2017 as a result of the Immigration Rules? Can he tell me how many of those nurses are in the care sector? Can he also tell me why nurses are not on the shortage occupation list, which would exempt them from those regulations? Will he make it his business to see whether the Home Secretary can change that?

[The Earl of Courtown]

My Lords, the noble Baroness mentioned the shortage occupation list. In February, following a commission from my right honourable friend the Home Secretary to conduct a limited review into a number of occupations on the shortage occupation list, which included roles in the health sector, the Migration Advisory Council advised against putting nurses on the shortage occupation list, after taking evidence from a range of stakeholders. Controlling migration is part of our plan to build a system that is fairer to British citizens. Employers must first try to recruit from the settled workforce.