Government and Parliament

Baroness Hollis of Heigham Excerpts

Thursday 9th June 2016 Lords Chamber

[Baroness Hollis of Heigham (Lab)]

My Lords, first, my apologies for these glasses; my proper ones are somewhere in the Adriatic sea.

We, Lords and Commons alike, are increasingly failing the public. The Commons, of course, determines legislation but in the light of Lords scrutiny—with our delegated powers and scrutiny committees, and the time we spend debating SIs—we are better placed to do so.

The reason for our failure to the public can be described in two words: skeleton Bills. A skeleton Bill endows the Secretary of State with whatever powers he deems necessary, to do whatever he deems necessary, whenever he deems it necessary to do so. Bills, therefore, are future-proofed for any future Secretary of State in a future contingency to take any further future action without any further proper parliamentary scrutiny.

To take the recent skeleton Housing and Planning Bill, we floundered our way through it. When we probed to find out some detail about how many, how much—central issues one might think—the Minister could not say. She would say, “That will be in regs”. What would those regs contain? She would reply, “We don’t yet know”. Why not? She would say, “Because they are out to consultation”. When did that consultation start? We would be told, “Recently”. When will we get its findings? The reply: “Later, after the Bill becomes law”. We would ask, “Then how can we know what this clause will do?”. We cannot because the Minister cannot—not will not, but cannot—tell us. When regs finally appear, perhaps at odds with our limited understanding of the Bill, we cannot get at them; we can only bleat.

In other words, SIs are being abused in a way that destroys the very purpose of this House: our scrutiny role. As a Chamber we are not democratic, but we are rather useful. That is our justification. How, then, without seeking to challenge the primacy of the Commons, do we ensure that, through our scrutiny, the Government remain accountable to Parliament and therefore to the public, and do not seek to use SIs as a convenient shortcut through controversy?

I suggest four steps. First, consultation should precede—not parallel, let alone follow—legislation. We need to gather the expertise out there, expose policy intent and analyse impact beyond the half-baked gesture statistics we get served in lieu of a decent impact analysis. Secondly, following consultation, policy must be fully embedded and transparent in the Bill, and open to amendment, not left to SIs for future debate. Thirdly, SIs should therefore be relegated to their proper role—the adjustment of technical detail only, as the noble Lord, Lord Lisvane, has regularly argued. Finally, those affirmative and perhaps more controversial SIs that come before us must be effectively scrutinised. How? We cannot amend them, obviously, without engaging in a ping-pong that treats them like primary legislation. To vote against destroys; to regret is to be ignored. We cannot get at them.

Instead, we must have the power to pause. Over the last 15 years we have had several major reports proposing that the Lords might wish very occasionally to delay the automatic passage of an SI carrying a heavy public policy load and ask the Commons and the Government to think again, and, when they have, of course the Lords acquiesces. The usual channels would sort out urgent matters, including security, where delay would be wrong. We need that power to press the pause button for a meaningful period, perhaps for 28 sitting days. The Government could wait it out, and the SI would become effective. But they might also—especially if Commons Back-Benchers are increasingly perturbed, as with tax credits—use that delay, in my view rightly, to change their mind.

In summary, there must be no skeleton legislation. Consultation should precede, rather than parallel or follow, parliamentary scrutiny; otherwise what is the point? Policy is to be embedded in the Bill, not carried by subsequent ungetatable SIs, which should be restricted to technical and minor detail. Draft regs or written statements of what those regs will contain should be published between Second Reading and Committee so that Bills can, if necessary, be amended accordingly. It can be done. The noble Lord, Lord Freud, worked with Committee members during the passage of the then Welfare Reform Bill in 2011-12 to do precisely that. We worked on and developed regs together. It can be done—if, of course, the Lords Minister is a player, not merely a messenger.

Finally, affirmative regulations that this House believes carry previously unexplored or controversial policy content could be paused for further reflection—I suggest for 28 sitting days—by a delay Motion, which then accepts the primacy of the Government in the Commons. This set of proposals would allow us to scrutinise public legislation, as we should. Asking the other place sometimes to think again on SIs, as we do with primary legislation, would help to justify our role as an unelected House, while ensuring that the Commons retains the last word. It would produce infinitely clearer and more transparent legislation, and those whom that legislation affects will know where they stand from day one; that is impossible with regs out there somewhere in the ether, which may be drawn down or not. Above all, it would allow us to serve the public as we should, for we have no other purpose and no other reason as a House for our existence.

--- Later in debate ---

[Baroness Stowell of Beeston]

We can move measurements if we like and start counting pages, but it is a statement of fact. I cannot go back and count all the pages of pieces of secondary legislation from 20 years ago, but I can tell noble Lords that we certainly dramatically reduced the amount of secondary legislation in the last Session.

[Baroness Hollis of Heigham]

My Lords, we talk about clauses, SI numbers and pages, but what matters and what the noble Baroness has so far not addressed in her constructive response is whether they are heavy-duty SIs carrying a policy load. Nobody has any objection to a number of SIs that technically adjust things such as the timing of when things will be brought in. What matters is whether they carry policy and therefore, by virtue of being SIs, put that policy beyond proper parliamentary scrutiny.

[Baroness Stowell of Beeston]

We can get into a debate on the detail. I have looked at the content of secondary legislation and how the Government performed in the last Session against the Governments of which the noble Baroness was a member. If she likes, I can trade a range of different examples of where previous Governments were criticised for inappropriate use of secondary legislation, but we are trying to move forward.

On the point raised on Henry VIII powers, I was pleased that the noble Baroness, Lady Taylor, disagreed with the noble and learned Lord, Lord Judge. Like her, that is not something from which I take any pleasure. She is right to point out that it would be impossible for us to do without Henry VIII clauses completely, but that does not mean Parliament should not be very watchful of the Government’s use of such powers. Some are appropriate, in that they are used in appropriate circumstances. For instance, the noble and learned Lord referred to one in the Children and Social Work Bill, which is about to receive its Second Reading in this House. That is designed for a specific purpose. Clearly, as that piece of primary legislation goes through, we will have to debate whether that power is appropriate for what it is designed to do. We can and should have a proper debate about these things but I would not necessarily argue that all of them are open to criticism just because they exist.

As the House knows, the Government have not yet responded to my noble friend Lord Strathclyde’s review of secondary legislation. This was acknowledged by the noble Lord, Lord Butler. We are still considering that report and all the Select Committee reports alongside it. In looking at all these things, as my noble friend Lord Wakeham said—I think this is where we have real agreement in the House—we do not want this House to diminish its influence but we need to ensure that the elected House, the House of Commons, has the final say on all legislation, not just on primary legislation. This is a topic that I know we will continue to discuss and consider.

I note what my noble friend Lord Trefgarne and others said about the conventions that were so hotly disputed. The problem is that we still have among us a lack of agreement on where we are with those conventions. That does not mean that we cannot try to seek some clarity and agreement between us.

The noble Baroness, Lady Smith, made a number of constructive suggestions about steps that could be taken to address these matters. As I say, I think we all agree on the importance of what we are trying to achieve, which is for this House to continue its very important role of scrutinising and revising legislation, and holding the Government to account. I will reflect carefully on some of the noble Baroness’s specific proposals. I note that a lot of the issues she raised—such as Cabinet Office guidance, full impact assessments prior to Secondary Reading debates and draft regulations prior to Committee—are what should happen anyway. That means there is a lot for me to take away and think about. The process is there but I need to ensure that the Government understand their responsibilities in proceeding with and fulfilling that. I will reflect as well on the noble Baroness’s idea of a particular committee to look more broadly at how we prepare for legislation and our various scrutiny procedures in this House.

More than anything, I want to conclude by reinforcing to noble Lords just how much I share with them the objective of trying to make sure that this House is able to do what it exists to do. Like all noble Lords who spoke today, and many more sitting here in the Chamber, we all feel very passionately about the purpose of this House. Noble Lords have heard me say many times that I describe it in this way: this House exists to give the public confidence in the laws that ultimately Parliament makes. I want to ensure that we are always equipped to do that. I will take away the very constructive comments and contributions made today. I will carefully read Hansard again; as noble Lords know, often when one is sitting on the Front Bench it is hard to keep up with everything being said. I am very grateful to the noble Baroness for her introduction to this debate and for everything that she said today about my ministerial team and their efforts to respond constructively to the scrutiny given to the Government’s legislation. I thank all noble Lords for their contributions.