Legislation: Skeleton Bills and Delegated Powers

Baroness Smith of Basildon Excerpts

Thursday 6th January 2022 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, let me first say how grateful we are to the noble Baroness, Lady Cavendish, for the opportunity to debate these two reports today and for the excellent way in which she introduced this debate, which set us off in the right direction. She mentioned the House of Commons having its own committees; one of the things I always say to new MPs about the things that I wish I had known as a new MP is about these two committees and how useful the reports they produce are when examining legislation. Although we have had a brief debate, I hope we will have a further opportunity, when the Government respond to these two reports, to debate them alongside the Government’s response to look for the way forward.

The debate today has been thoughtful and proportionate; there is always a danger that it can descend into a whinge session on all the things we think are wrong. What has happened today is that we have seen productive and sensible suggestions for ways forward. I am not saying that there are no circumstances in which a Government should introduce a skeleton Bill, and I do not think that was the consensus today. But essentially, if it is deemed necessary to do so then the means by which the provisions are considered need to be improved.

These two reports have identified three broad categories regarding legislative scrutiny. One is the relationship between Parliament and government, and therefore the role of Parliament. My noble friend Lord Rooker made a point which I had also intended to make: too often, the Government confuse and conflate the arguments between the Commons and the Lords, but it is actually between the Executive and Parliament where the debate should be had. Thinking about the Strathclyde report, when I became Leader of the Opposition in your Lordships’ House one of the first things I faced was Jacob Rees-Mogg—perhaps in the role of Cromwell, I thought, having listened to the noble and learned Lord, Lord Judge—threatening this House with 1,000 new Peers if the Government did not get their way on a piece of legislation.

The second category was on the balance between primary and secondary legislation. The third is the slide, whether deliberate or just careless, into bad practices in drafting and considering legislation that undermine parliamentary democracy and therefore undermine good legislation.

The use of delegated powers and secondary legislation is not inappropriate in every circumstance; it is certainly not for the normal uprating and relatively minor and non-contentious issues. There generally is no issue where policy has been clearly set out in primary legislation and the SI or delegated legislation does not deviate from it. However, using delegated powers to avoid effective parliamentary scrutiny, whether because the detail is unavailable or because it is too time-consuming to introduce primary legislation—too much hassle—is where the problem arises.

The concern about skeleton Bills and delegated powers is not new. As we heard, in 1992 Lord Jellicoe’s committee responded to the “considerable disquiet” on this issue. That led to the establishment of what is now our Delegated Powers and Regulatory Reform Committee. The Cabinet guidance on legislation still refers civil servants and Ministers to that Lords committee, yet the latest version of the guide, produced in 2017, down- graded how Governments respond to its recommendations. Instead of the Government seeing the DPRRC as an aid to good legislation, they have moved towards seeing it as a challenge to them getting their own way.

In 2018, our own Constitution Committee reported on delegated powers and the legislative process, and it identified similar concerns. At that point, I had identified two examples where I thought there was inappropriate use of secondary legislation. The first was in December 2010, with the increase in higher education tuition fees from £3,000 to £9,000—that was clearly a policy issue. The second was on tax credits in 2015, where this House did not vote against an SI but just asked the Government to bring in mitigating measures before taking it forward. As your Lordships will recall, the Government hugely overresponded and overreacted to that when we saw the Strathclyde report.

Neither of those examples would have fitted the statement by Chris Grayling, the former leader of the Commons, that SIs were for “minor, technical and mundane” changes. I think we have moved a long way from that. I would argue that the process used by the Government in those two examples made those issues even more contentious than they needed to be.

Another example is the Childcare Bill in 2016, which in the Government’s first Session started its parliamentary passage in the Lords, mainly because the broad policy objective was uncontroversial. But it rapidly became clear that the detail was unavailable and a view had been taken that that could be sorted out later in statutory instruments, even including a provision providing for a custodial sentence. Then we had the Children and Social Work Bill, which contained 55 references to the use of secondary legislation, though no drafts of those orders were available, and 20 clauses on social workers with all the detail in regulation. About half the Bill was framework or skeleton.

I understand the arguments that legislation may need to be updated regularly or that consultation is required, but in both the cases I have mentioned the reason was that the policy and detail had not been completed. As we have heard across the House today, we know that the consideration of secondary legislation is inferior, but, while the parameters of what is appropriate are adhered to, that does not become a problem. In those cases, though, it certainly was a problem.

Where a Government consider that they have to introduce a skeleton Bill—perhaps because of parliamentary timetabling—we should look at additional ways of enhancing the process. We have heard some examples today. The DPRRC makes the helpful recommendation of a scrutiny reserve, providing time for Ministers to provide further information, evidence and justification. I have previously called for all draft regulations in such cases to be made available at least prior to Report.

My noble friend Lord Liddle’s proposal that there should be certification of a Bill as a skeleton Bill, and that in those very limited circumstances the statutory instruments could be amendable, deserves further consideration. I think that could be helpful. It would not encourage skeleton Bills through laziness or any parliamentary sleight of hand, but, where it was essential, Parliament would still have the opportunity for effective consideration. I also commend the recommendation by the noble Lord, Lord Norton, for a legislative standards committee; I think that would be helpful, certainly for some of the drafting and what I call the workability of legislation. So there are ways of doing this better.

Noble Lords will be aware of the 2006 report by the Joint Committee on Conventions, which emphasised that your Lordships’ House had a limited role when considering secondary legislation but also concluded that one of the very few situations when the House had constitutional cover for a fatal Motion against an SI was

“when the parent Act was a ‘skeleton Bill’, and the provisions of the SI are of the sort more normally found in primary legislation”.

Your Lordships’ House is, wisely and rightly, uncomfortable with fatal Motions, so the kind of process that has been described today by noble Lords across the House would certainly present a more moderate and helpful way forward without disrupting the Government’s timetable or the programme of legislation.

When parliamentary scrutiny is evaded, Professor David Judge—of the University of Strathclyde, interestingly —refers to that as “the dark side”. He identifies the essential components for effective scrutiny as a willingness by the Government to have their legislation properly scrutinised, alongside the willingness and the capacity of Parliament to do so. There is not time today to consider all the practical recommendations in the two reports that have been brought to the House today, but it is clear that they all require the willingness of both parties, or at least one party, and that is where we ought to direct our energies and efforts.

I have a couple more comments to make about scrutiny. The first is that we have heard before in your Lordships’ House—indeed, from the Minister— the Government’s unpersuasive argument against amendments: “The House of Commons didn’t amend this Bill, so likewise your Lordships’ House shouldn’t vote for any amendments either.” My objection to that is twofold. First, the reason for our consideration is that there may be further information, a new issue or a different viewpoint that has come to light and which it would be helpful for Members of the other, elected House to consider, especially when that part of the Bill has not even been considered in the other place because of timetabling.

My second objection is that it misrepresents and overstates the role of your Lordships’ House. We are a scrutinising and advisory Chamber, and any amendment to primary legislation by this House has to be voted on by the elected MPs. My noble friend Lord Rooker has on more than one occasion referred to your Lordships’ House, perhaps unkindly, as a sub-committee of the House of Commons, and it is the case that our deliberations on primary legislation have to go to the Commons. A Government who are confident of their position have nothing to fear from the scrutiny of your Lordships’ House, but it is understandable that a weak Government who do not enjoy the confidence of their MPs may not want to reconsider an issue—in which case that is not about support from this House but about support in the other place.

Finally, Select Committees are probably the most important non-legislative role that Parliament has. When examining ministerial attendance at Select Committees, it is clear that it is not just the “Today” programme on Radio 4 that has its invitations rejected because no government Minister is available. That should change in all cases, especially when Select Committees are looking at legislation or its impact. Ministers should not refuse or unnecessarily delay their appearance before a Select Committee.

It is clear that considerable intellectual efforts and practical experience have been brought to bear in producing these reports. The noble Baroness, Lady Cavendish, brought the reports together, and her experience and the evidence in her Financial Times article have been helpful to the House in considering these issues. I look forward to the Minister’s response today, but also to a further debate, when we can examine and discuss the Government’s response to these two reports.