Legislation: Skeleton Bills and Delegated Powers

Baroness Scott of Bybrook Excerpts

Thursday 6th January 2022 Lords Chamber

[Baroness Andrews (Lab)]

My Lords, I congratulate the noble Baroness, Lady Cavendish, on her choice of debate and the brilliant way in which she introduced it. As a member of the DPRRC, it is a particular pleasure to follow our chair, the noble Lord, Lord Blencathra—the Braveheart who led us into this important report alongside his colleague, the noble Lord, Lord Hodgson of Astley Abbotts. I am sure the Minister knows how formidable a duo he faces.

What is different about the two reports at the heart of this debate is not just the arresting language or, indeed, the fact that we have a pincer movement on Westminster and Whitehall; it is the nature of the analysis and the depth of the recommendations, which will go beyond this Chamber. This is about context.

Take the titles of the reports, for a start: Democracy Denied? and Government by Diktat. One might be forgiven for thinking that these were the product of some raving pamphleteer but no, they are not. They come from the two most senior scrutiny committees in the House, and the language is justified. They express with little reservation all the frustration that we in this House have felt for a long time at the growing contempt for Parliament, which has been accelerated by the expediency of Brexit, the concentration of ministerial powers, the interpretation of “emergency” in terms of Covid and the stranding of Parliament.

The reports confront this challenge holistically and head on. They take the long view: they look backwards over a century of accumulated frustration but they also look forward. If Parliament is to reassert its power, it will be for the long term. Over the years, the DPRRC has won many battles on the Floor of this House. What we have been less successful at is changing and challenging habits, which these reports do. What should be exceptional has become business as usual, whether it is skeleton Bills or delegated powers.

The prescription set out in these reports goes far beyond “Chaps should do better”. It challenges the Government in principle and in practice to assert and govern by the basic principle that legislation is the servant of parliamentary democracy. In that context, the state we are in is not an extension of a game of cat and mouse between Ministers and Parliament. The reports document a structural shift in both the culture and strategy of the Government and Whitehall—that is, a culture that says that anything goes, anything can be tried on and any excuse can be offered and a strategy through which Ministers can, without restraint, hide in delegated legislation aspects of policy that need to be open to scrutiny and challenge. Skeleton Bills, Henry VIII powers and guidance rather than regulation are defended on the grounds of urgency and flexibility, no matter how flimsy or, frankly, nonsensical the argument. It is a creative culture, as we have seen in the raft of inventive ways, language, protocols, directions and so on in the form of disguised legislation.

The point is that this transfers powers to people and institutions that are well out of Parliament’s sight, sometimes in contested areas when the police are asked to do something by guidance that should have been regulation. The impact of this secondary legislation is the sharp end of the law: the point at which perverse consequences that could have been cleared away become real and make a real difference to people.

Sometimes it is argued that the Government do not understand what they are doing—of course they understand. Why else would they have introduced attempts to prorogue Parliament, or indeed to strip out treaty obligations by law? It marches on: the Health and Care Bill has so much delegated legislation and, with 50% of it beyond parliamentary control, the committee had to weigh it rather than analyse it.

We can no longer rely on the good chaps reasserting control. A reset means putting the Cabinet Office on the line so that its own guidance insists that the making of all legislation and the behaviour of Ministers is subject to the explicit principle of parliamentary democracy. It means identifying skeleton Bills as the outlaw Bills that they are and treating them as such, and it means ensuring that every civil servant assumes that Henry VIII powers can expect to be constrained by regulation.

It is time that we reopened the whole debate over the nature of secondary legislation and the sole nuclear option open to us. We ought to revisit this because it disables us as a Parliament. If we intend to strengthen Parliament in future, we have an obligation now to revisit that.

[Baroness Scott of Bybrook (Con)]

May I remind noble Lords that the limit for speaking is four minutes? We have a long list of speakers tonight.