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

Baroness Smith of Basildon Excerpts

Tuesday 5th March 2013 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I join other noble Lords in thanking the noble Baroness, Lady Thomas of Winchester, and her committee for the work that they have done in providing this report and securing the debate. I found the debate really interesting and highly relevant, which is something of an achievement when you think that we have harked back to 1539 and Henry VIII on numerous occasions.

I spent 13 years in the other place, where there is no such committee and not the same opportunity to have a report on delegated legislation. Despite the view of many that this matter is irrelevant and a bit technical, we have heard from a number of noble Lords about the huge impact that delegated legislation has on life. Since I have been in your Lordships’ House, I have found such reports to be invaluable.

It is a clear principle of our political system that the Executive have a right to implement their legislative programme—other noble Lords, including the noble Baroness, Lady Andrews, have made that point—but Parliament has an obligation to ensure that the laws passed are of the highest possible quality. Good scrutiny makes for good legislation and good government.

Most people outside Parliament, if they think about these matters at all, would be generally of the view that all legislation is debated in full by both Houses. I suspect that many would be surprised if they were aware of the volume and content of delegated legislation. Yet as the committee rightly points out, the context for the report is,

“the increasing practice of delegating significant legislative powers to Ministers, and the House’s continuing desire to ensure that appropriately robust scrutiny processes are put in place”.

It is clear that your Lordships’ House fulfils its role as a scrutiny Chamber, but it has to be recognised that the scope for scrutiny of delegated legislation is limited. The noble Baroness, Lady Thomas of Winchester, made it clear that it is appropriate to have delegated powers if they are used appropriately. I think that we all recognise that we can only accept or reject delegated legislation. For reasons of constitutional sensitivity, the latter happens rarely in the House of Lords, as the noble Lord, Lord Filkin, observed in his powerful comments. Acceptance or rejection is not a substitute for good line-by-line scrutiny, debate and possible amendment, but it is none the less beholden on us to do the best job that we can with such legislation.

Having sat in both Houses, I have no doubt that the scrutiny undertaken by your Lordships’ House is superior in this regard, and that role of scrutiny is taken very seriously and is fulfilled. As I have said, there is no equivalent committee in the Commons. The Procedure Committee in the other place has considered the idea, but it has never really got off the ground. It could be argued that its failure to have a similar delegated powers committee reinforces our role as a scrutiny Chamber, with the Commons perhaps accepting that as being our role and saying, “We'll leave it to the Lords to do this worthy, very technical work for all of us”. That is quite an imbalance and recognising the different roles of both Houses could be seen as a division of labour, but it also makes the scrutiny of delegated legislation here an even more important responsibility and one that we have to take very seriously.

The true value of scrutiny is in the capacity to revise and reject when required. Legislation of this kind cannot be amended and only withdrawn by government and retabled in another form, which is rare—although, coincidentally, it happened today on the health regulations. All this makes scrutiny of delegated legislation a bit of a blunt instrument and, as the noble Lord, Lord Marks of Henley-on-Thames, said, sometimes an inadequate instrument as well. That is why we should be concerned about the overreliance of Governments on this type of legislation. The report is very helpful in that regard.

The power to reject is available in rare cases. The powers that this House has in that respect were reaffirmed by the Cunningham committee in 2006. Its report on the relationship between the two Houses, which was accepted unanimously, said:

“There are situations in which it is consistent both with the Lords’ role in Parliament as a revising chamber, and with Parliament’s role in relation to delegated legislation, for the Lords to threaten to defeat an SI”.

That is in paragraph 229 of that report. On that point, the noble Lord, Lord Strathclyde, who was then Leader, said in communication with the Merits Committee:

“The Government welcomes the Committee’s conclusion that the opposition parties should not reject an SI simply because they disagree with it”.

The bar for rejecting delegated legislation—an SI—is set pretty high and is rarely used. It is all the more powerful because of that. Although your Lordships’ House can debate and, at times, vote on delegated legislation, it rarely uses that power, as we have heard. Yet tomorrow evening we have a vote on the Agricultural Wages Board. That is because an SI being heard in the Moses Room was negatived and now has to come before your Lordships’ House to be voted on. So there are occasions when this takes place.

Any significant increase in delegated legislation impacts on the ability of your Lordships’ House to effectively scrutinise it. The references to Table 1 in the report have been very helpful tonight. My noble friends Lord Haskel and Lord Soley, and others, pointed out the variations in the way delegated legislation had been scrutinised. That is not helpful to the work we do. More importantly, it is not helpful to the understanding of the work we do, both outside your Lordships’ House and with other noble Lords. The committee’s table is very helpful and makes it clear that there is a wide range of enhanced scrutiny mechanisms. Moves to simplify this array are extremely helpful, as is the committee’s recommendation that any additional procedures suggested in future should be accompanied by justification and explanation by the Government of the day.

The committee expressed concern as to whether the current procedures and the complexity in procedures are adequate given the increased use of delegated legislation. Given that increase, the Government should not think that this is an easy way to get legislation through. The comments made by my noble friend Lord Filkin were particularly relevant. Any Government must consider carefully in any piece of legislation that they bring forward whether it is appropriate to delegate order-making powers to Ministers. We have heard from many noble Lords—my noble friend Lady Andrews made this point—that clearly in many cases it is essential and reasonable to do so and we accept that. But as the committee notes, we may also want to look at why there has been such an increase.

First, there has been an increase in legislation generally. The noble Baroness, Lady O’Loan, gave some examples of how big that increase has been. There is also an issue of Bills coming to Parliament before they are truly ready—or “oven ready” as I have described them. I can think of two such Bills that I specifically worked on from the Front Bench. One was the Energy Bill in the last Session of Parliament. More than 50 pieces of secondary legislation will come from that Bill. That seems a huge amount and we have to question whether, if the Bill had come to us a bit later, some of those pieces of secondary legislation would not have been more appropriate in primary legislation.

One of the crucial parts of the Crime and Courts Bill—another Bill yet to come back to this House—is setting up a national crime agency, to be established through a framework document. That framework document was not available to your Lordships’ House even at Report stage, though it had been promised to us earlier. Given that that framework document will describe everything that the NCA is supposed to do and how it will do it, and so will be crucial to the establishment of the new agency, it would have been appropriate to have that before your Lordships’ House as part of the primary legislation. Instead it will be brought forward by order that will be unamendable and will not have same the degree of discussion and scrutiny. To my mind, it is an integral and essential part of that Bill. Again, it would have been better if that Bill had taken a little longer to come to your Lordships’ House and not been one of the first Bills off the blocks, so that that information was available to noble Lords.

The Welfare Reform Bill is almost entirely framework legislation. We are seeing so many regulations for the Health and Social Care Bill and for LASPO. All the Bills that I have mentioned were totemic pieces of legislation, highly political but with much of the meat left to delegated legislation. What opportunity has there been for Parliament properly to scrutinise the Government’s intentions and for this House to play its role in assisting the Government by looking at whether legislation can be improved?

When such a significant part of legislation is coming forward as delegated legislation, we need to delve deeper into the question of whether the Bill was really ready, whether it was oven-ready, before coming to your Lordships’ House. It is not appropriate for the delegated procedure to be used when it would have been entirely reasonable to expect that part of legislation —the NCA is probably the best example that I have used—to be in the Bill. A further question to ask is whether it is appropriate for the issue. I cite the report:

“One principle underpinning our work is that no level of parliamentary scrutiny can in itself make appropriate a power which it is inappropriate to delegate to secondary legislation”.

Finally, I turn to the other recommendations in the report. Comments were made on the existing models of scrutiny. I am really pleased that that was addressed by the committee, because good scrutiny requires good understanding of procedures. I entirely agree with the committee that variation leads to increased and unhelpful complexity. That has grown up and it is right to address it at this stage.

On the issue of supporting documents, specifically under Section 19 of the Localism Act, I share the committee’s bemusement. I cannot imagine why the Government would not want to publish supporting evidence and information to assist your Lordships’ House in considering legislation. It seems to me to be helpful to your Lordships’ House and to the Government. I would be interested to hear the noble Lord’s explanation on whether the Government accept the moderate recommendations of the committee. The Localism Act does not include a requirement for supporting documentation; but neither does it include a requirement that Ministers should give a reason why there is no supporting documentation. My interest is not just in the specific point on that but why the Government think that it is appropriate to move away from the principle of having supporting information. I cannot recall a precedent. I am not making a party political point, because there may well be precedents under the Government of whom I was a member, but I am genuinely puzzled and an explanation would be helpful.

Perhaps I may refer to the point eloquently made by my noble friend Lady Andrews about the undertaking given by the previous Labour Government, which is referenced in the report. It was made by Jim Murphy during the Second Reading of the Legislative and Regulatory Reform Bill. He said:

“I am giving a clear undertaking today that orders will not be used to implement highly controversial reforms, that they will not be forced through in the face of opposition from the Committees of this House and that the Committees’ views on what is appropriate for delivery by order will be final”.—[Official Report, Commons, 9/2/06; col. 1058-9.]

I agree with my noble friend Lady Andrews that it is disappointing that the Government have not yet endorsed that approach, but I notice that the House is to debate on Thursday an amendment to Standing Order 72, which refers to those matters under the Localism Act 2011 and Section 5E of the Fire and Rescue Services Act 2004. That is also mentioned by the committee in its report. The committee asks that the Government be very clear about whether they intend to give those same undertakings specifically in respect of those sections of those Acts.

Having read what the Government have put before the House for Thursday 7 March, I am not sure that it fulfils the function that the committee is asking for. It is a limited improvement. Unless I am mistaken—I read it quite hurriedly—it does not go as far as the committee would have liked. It merely states that it should go to the Merits Committee or the Delegated Legislation Committee. If the noble Lord could comment on that, that would be helpful.

In conclusion, it would be helpful if the noble Lord could clarify the Government’s position. All Ministers are aware that legislation benefits from scrutiny. I admit that it is sometimes uncomfortable at the time for Ministers to be scrutinised, to lose a vote or to lose part of a Bill that a Minister considers to be important, but it is often that legislation is proved and problems are prevented further down the road. The debate we have had today illustrates yet again that these responsibilities on scrutiny and revision are taken very seriously.

Suggestions and recommendations were made in the report and by speakers in the debate. It would be helpful if the Minister, in the spirit of your Lordships’ House doing the job that it is required to do as effectively as possible, could respond to those comments. I agree with the comments made by the noble Lord, Lord Butler, about the delay in the Government’s response. I understand that it happens—it has happened under all Governments—but when we are talking about such crucial matters as, in a sense, how effective your Lordships’ House can be in scrutinising legislation and, increasingly, delegated legislation, any guidance the Minister can give on the Government’s thinking would be extremely helpful.