Democracy Denied (DPRRC Report)

Baroness Drake Excerpts

Thursday 12th January 2023 Lords Chamber

[Baroness Drake (Lab)]

My Lords, I congratulate the noble Lords, Lord Blencathra and Lord Hodgson of Astley Abbotts, on their excellent committee reports. They have exposed the two key constitutional concerns: that effective parliamentary scrutiny is being undermined by the way in which Bills are framed and that important policy decisions are increasingly being left to delegated legislation, thereby weakening parliamentary scrutiny and increasing ministerial powers.

Those concerns are shared by the Hansard Society and the Constitution Committee. In 2018, the Constitution Committee, chaired by my noble friend Lady Taylor of Bolton, published a report, The Legislative Process: The Delegation of Powers, which identified concerns that align with the conclusions in today’s reports. That report recognised that delegated powers are essential to the legislative process, allowing Parliament to focus on important policy decisions and leaving implementation detail to secondary legislation, but that the level of parliamentary scrutiny was increasingly contentious, evidencing a constitutionally objectionable trend for the Government to seek wide delegated powers that would permit the determination, as well as the implementation, of policy. For some, the determining factor as to whether to include a delegated power was whether Parliament would accept it, rather than any point of principle.

The report also emphasised that, where statutory instruments are used to give effect to significant policy decisions, without any genuine risk of defeat or possible amendment, Parliament is doing little more than rubber-stamping, which is constitutionally unacceptable. By working together, the Delegated Powers Committee and the Secondary Legislation Scrutiny Committee have shone a spotlight on what my noble friend Lady Taylor described as the accelerating and unhealthy

“trends in what … Ministers think they can get away with without properly consulting Parliament”.—[Official Report, 16/9/21; col. 1604.]

They have directed ministerial and parliamentary attention to the need to address

“the culture of using delegated legislation.”

The Constitution Committee continues to highlight constitutional concerns arising from weakening parliamentary scrutiny and enhanced ministerial powers in its reports on Bills brought to this House, which align in many instances with the conclusions in the reports before us today. In its report Brexit Legislation: Constitutional Issues, the committee took stock of all the Brexit legislation and criticised the powers therein for being too broad, too ill-defined and lacking in safeguards. A distinguishing feature was the extent of the delegated powers—skeleton Bills, with little or no detail on the policy or institutions to be created. The European Union (Withdrawal) Bill required Henry VIII powers to facilitate the withdrawal and deliver legal certainty and continuity, but it granted Ministers

“far greater latitude than is constitutionally acceptable”.

The reports COVID-19 and Parliament and COVID-19 and the Use and Scrutiny of Emergency Powers highlighted the volume of SIs laid in response to the pandemic, the use of fast-track procedures, which severely limited Parliament’s ability to scrutinise and provide a constitutional check on the exercise of arbitrary power, and the blurring of the distinction between legislation and guidance.

The Sewel convention does not apply to delegated legislation, but it would be constitutionally questionable for Parliament to circumvent it by legislating in a way that intends delegated legislation to change devolved legislation in areas of devolved competence. This concern was highlighted in the committee’s reports on the Nationality and Borders Bill, the Economic Crime (Transparency and Enforcement) Bill and the Energy Bill. Guidance utilised as disguised legislation was highlighted in its reports on the Public Order Bill and the Health and Care Bill. It was reasserted by the committee in its reports on the Energy Bill and the Northern Ireland Protocol Bill that delegated legislation to create criminal offences is constitutionally unacceptable.

The Delegated Powers Committee and the Secondary Legislation Scrutiny Committee have had several exchanges with the Government on strengthening parliamentary scrutiny. Some progress has been made, but it is clear from the debate today that much more is needed. The governance of our parliamentary democracy is more important than ever, as has been stressed by many Members. One Government’s acts of expediency can be deployed by a future Government as precedent, taking us further down the road away from Parliament making our laws towards Ministers increasingly taking powers to change the rules and regulations.

Finally, I congratulate my noble friend Lord Prentis on his maiden speech. I am sure that he will be an asset to the House.