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

Baroness O'Loan Excerpts

Tuesday 5th March 2013 Lords Chamber

[Baroness O'Loan]

My Lords, it is a great pleasure to participate in the debate this evening. In common with my fellow members of the committee, I want to express my appreciation to the chairman, the noble Baroness, Lady Thomas of Winchester, for the way in which she conducts the meetings and the business of the committee.

We are discussing specific issues tonight but they arise in the context of the volume and complexity of legislation passing through these Houses, which has grown so much over the years. We have only to look at the most recent public legislation figures for the last Session. In 2010-12 some 80 Bills came before the House; 10,000 amendments were tabled in the two Houses and, of these, 25% were accepted. In the same period, 9,432 measures of delegated legislative instruments were passed. That is a huge volume of new law cascading forth to be understood and applied. It is vitally important in cases that require scrutiny that it is properly carried out so that Parliament may achieve and carry out its functions. There is significant interest in the delegated legislative scrutiny processes, and studies are presently being carried out.

Many of the measures which issue as delegated legislation quite simply do not come for approval before any committee. About 2,500 of the 10,000 actually came to the Secondary Legislation Scrutiny Committee. Many of them are simply passed into law and the Delegated Powers and Regulatory Reform Committee has no power of scrutiny over delegated legislation introduced after the passing of an Act. Such scrutiny as does occur is the responsibility of others. However, questions may rightly be asked about whether there is sufficient scrutiny of the huge volume of delegated legislation, currently running at about 10 measures every day.

The committee examines each occasion on which power is delegated. For example, most recently, the committee was satisfied that it was appropriate for the orders prescribing rates of welfare benefits to be subject to no parliamentary control. The Bill leaves the Secretary of State and the Treasury with very little discretion so there is very little control that the House could usefully exercise. The role of the committee in that context is necessarily limited but it will consider whether any Bill contains delegated legislative power that is inappropriate and examine each occasion on which there is a delegation in any Bill.

For the general public there will be no requirement or even will to examine many of these measures, but there may be occasions when they need to know the law. They must find their way through a huge quantity of legislation and then interpret the measures, which frequently refer to a range of other measures, in order to apply the law. Such is the volume of legislation that the limit on available parliamentary time, together with the complexity of particular measures, means that legislative power is more frequently delegated to Ministers and others.

The chairman of the committee, the noble Baroness, Lady Thomas of Winchester, has explained the role of the Delegated Powers Committee in scrutinising Bills to assess the appropriateness of each occasion and the manner in which the exercise of the delegation of the legislative function occurs.

The Government decide which measures should be placed in scrutiny. Perhaps the most potentially sensitive measures are those that seek to amend primary legislation through the use of secondary legislation—Henry VIII powers. We devote particular attention to such measures, although in many cases the content of the measure is not contentious. However, the essence of what we do is to determine whether there is any inappropriate delegation and whether legislative power is delegated subject to an appropriate level of parliamentary scrutiny.

The committee is watchful. We ensure that we do not consider matters that are ultra vires the committee, no matter how tempting that may be on occasion, and it is tempting. We are also cautious, ensuring that when we advise the House we do not act hastily or inappropriately. Thus in 2010-12 we made only 55 recommendations to government, 48 of which were accepted. In this Session we have made 28 recommendations, of which 23 were accepted.

Noble Lords have described the variety of mechanisms through which delegated legislation can be scrutinised. The language in which we describe these procedures may be historic and can probably be improved. As a House I think we are very reluctant to refuse to affirm legislation or to challenge it. It could be otherwise. The committee has developed an almost invariable practice of recommending the affirmative procedure where there is no upper limit to maximum civil or criminal penalties in a delegated power to make orders or regulations. We have developed a series of standards which we apply.

The recent development of a number of super-affirmative or enhanced affirmative procedures, 11 in all under particular Acts such as the Northern Ireland Act 1998 and the Localism Act 2011, are examples of that. However, as the committee has made clear in the past, the insertion of a super-affirmative procedure cannot by itself bring a misconceived delegated power within the bounds of acceptability. While accepting, indeed admiring, the ability of my noble colleagues to find their way around the myriad conventions and procedure governing the passing of legislation, I am fairly sure that there are not many Members who could state the powers attaching to the exercise of each of the different enhanced scrutiny procedures. They are laid out in Appendix 1 of the fifth report, including powers such as that to require the laying of supporting materials; the requirement of consultation; and the power for the relevant committee to veto an order.

Such is the complexity of the current possibilities that the committee has recommended that the Government should not normally use new, enhanced security procedures, but rather one of the existing models. This recommendation has been accepted by the Government, as has the accompanying recommendation that if the Government propose the creation of yet another procedure, they should explain the reasons why.

There is such a variety of models now in use, each with its own requirements, that it should be most exceptional for any new type of procedure to be introduced. The committee has yet to receive a response from the Government as to whether they will confirm the undertakings given by the previous Government, which have been referred to by noble colleagues tonight, under the Legislative and Regulatory Reform Act 2006, the Localism Act 2011, and so on.

The Companion to the Standing Orders and Guide to the Proceedings of the House of Lords states that there is no set time limit for government responses to reports from the Delegated Powers and Regulatory Reform Committee, as these need to be made, and amendments tabled, to the Bill in question. However, this recommendation affects potential draft orders to be made under legislation passed in 2004, 2006 and 2011. It is clearly desirable that the Government respond rapidly and positively to the statement made by the committee in paragraph 21 of the report. Similarly, the Government were asked by the committee to put proposals to the Procedure Committee for how the House will scrutinise draft orders under six other Acts. It is welcome that the Government have agreed that those measures should be scrutinised by the committee.

Scrutiny in all its forms is a vital part of the legislative process. That part of the scrutiny which is carried out by the Delegated Powers and Regulatory Reform Committee is vital, as it goes to the heart of the exercise of the democratic mandate which Governments have by virtue of election. Where the Government seek to legislate to confer a power to delegate matters which are properly the prerogative of Parliament, then the committee must exercise its powers by applying standards to determine that this has happened, as occurred during the highly controversial passage of the Public Bodies Act 2011. The committee stated that if the House could find no overriding reason or exceptional circumstances which justified the inclusion of Clause 11 and Schedule 7—those powers which allowed the Minister to add any of 150 bodies or offices listed in Schedule 7 to any of Schedules 1 to 6, and hence to make them subject to abolition and other changes without further parliamentary intervention—the committee would recommend that they should be removed from the Bill. The clause and the schedule were both removed from the Bill.

This report is designed to ensure that no further complexity is introduced into our scrutiny procedures. It is modest in its requests. It should serve as a useful tool for those who seek to understand the processes which currently exist. The work of the House is complex and demanding. New, wider procedures for the scrutiny of delegated legislative instruments would possibly be beneficial to the quality of the legislation passed. For the present, however, I look forward to hearing the Minister’s response to the proposals.

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[Lord Wallace of Saltaire]

I take all those points on board. This is the sort of question that we would naturally want to continue discussing.

I very much hope that the quantity of secondary legislation will continue to decline. The general power of competence for local authorities, for example, reduces the necessity of detailed secondary legislation on a range of issues.

[Baroness O'Loan]

Perhaps I may ask the Minister to check that the quantity of secondary legislation is declining. It is possible that the number of statutory instruments is declining while the amount of secondary legislation is increasing.

[Lord Wallace of Saltaire]

My Lords, I will get the Cabinet Office to check and will write to the noble Baroness and others if my figures are way out, but I am hopeful that we have seen a reduction in the past three years. I also hope that the efforts that the Government are now making to decentralise within England and to give a power of general competence to local authorities will result in a further reduction in the number of secondary legislative measures.

This has been a very useful and constructive debate. It is the sort of thing that the House needs to do from time to time. I add my thanks to the noble Baroness, Lady Thomas of Winchester. I continue to learn from her about the procedures of this House, and I hope that I will continue to learn from her, as many others will, for many years to come.