Queen’s Speech

Baroness Scott of Needham Market Excerpts

Thursday 13th May 2021 Lords Chamber

[Baroness Scott of Needham Market (LD) [V]]

The Bills contained in this programme will no doubt receive the thorough and robust scrutiny of this House, but as we pass them we will no doubt be delegating dozens of new powers to government and government Ministers, because the volume of secondary legislation has grown enormously in recent decades. The process of EU exit and Covid-related emergency law has added to that.

Many reports and debates in recent times have drawn attention to the shortcomings of both Houses when it comes to parliamentary scrutiny of secondary legislation, and that includes the excellent report published today by our Constitution Committee. Too often, the very good work carried out by the staff and the members of the Secondary Legislation Committee and the Joint Committee for Statutory Instruments passes by the House because of procedures that we have ourselves established and agreed. This House has a duty to carry out effective scrutiny, as well a responsibility to ensure that the legitimate business of government can be carried out.

But I am not alone in feeling that, increasingly, the Government are not carrying out their side of the bargain. We have to give this some thought. The Government are increasingly using secondary legislation for significant policy changes that ought to be in primary legislation, and would have been in past years. In its 52nd report, the Secondary Legislation Committee cited changes to the Town and Country Planning Act that were fundamental to our planning system and ought to have been brought forward in a Bill.

In recent years, we have also seen a growth in statutory guidance, which receives virtually no parliamentary scrutiny at all. Again, the SLSC cited the recent grass and heather burning regulations, which were noted because the instrument was passed even though all the detail was in statutory guidance which had not even been published at that point. So the Government are getting three bites of the cherry: the Act itself, the secondary legislation and then the statutory guidance. In effect, this allows for constant post hoc changes to the law, with no parliamentary scrutiny.

These trends have accelerated rapidly during the pandemic. We have taken a pragmatic view that the public health emergency justifies some sacrifice of parliamentary scrutiny, but I think the Government have now taken this too far. The Constitution Committee report highlights that 424 Covid-related SIs have been laid. These include fines of up to £10,000, lockdowns, business closures and quarantines. Whatever position you take on those issues, surely they deserve timely and effective scrutiny—yet 397 of those SIs were either made affirmative or made negative. In other words, they take effect before any scrutiny has taken place, and Parliament can only act retrospectively. The SLSC reported that two came into force before they had even been laid. The Government argue that time pressures in the pandemic make this necessary but, in the case of face coverings, the policy had been trailed for weeks, so it is very hard to see why the regulations in draft could not have been published.

The scheduling of SI debates in both Houses means that they are quite often completely superseded by the time we ever get to debate them. The pressure of work in departments is leading to errors and non-compliance with agreed processes. Preliminary figures from the JCSI show that it reported 194 instruments on 248 separate grounds, including defective drafting and doubtful vires.

We see increasingly important policy announcements being made at press conferences; they get reported in the media and become firmly planted in the public consciousness. When the regulations appear, they are often far less draconian than the announcement but, as a result, there is widespread confusion about what the Government see as desirable and what they see as mandatory. It is not just the public but public authorities themselves—the enforcement authorities—that are struggling with this, as reported by the Human Rights Committee. The Inspectorate of Constabulary and Fire & Rescue Services said that the difficulty for police officers was made much worse by widespread confusion about the status of government announcements and the law. A Crown Prosecution Service review found that 27% of cases had been incorrectly charged, and no doubt many people have paid penalties rather than go to court. This is grossly unjust. It is a drain on our criminal justice system and very unhelpful to maintaining trust in the police force.

There are times when the state has to control what individuals do, but surely it must be through properly enacted legislation that is thoroughly scrutinised and fairly enforced.