Legislation: Skeleton Bills and Delegated Powers

Lord Anderson of Ipswich Excerpts

Thursday 6th January 2022 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, one of the lesser highlights of my festive season, which I have to admit was almost as unexciting as the New Year’s Eve of the noble Lord, Lord Rooker, seems to have been, was to read in the House magazine the advice of the noble Lord, Lord Pickles, on how to be a Minister.

“Few Acts of Parliament change much”,


he reflected.

“It is secondary legislation that delivers policy.”


Of the many recent examples that confirm the truth of the noble Lord’s words, the most striking for me is the commitment to achieve net-zero greenhouse gas emissions by 2050, introduced under the Climate Change Act 2008 without any opportunity for meaningful debate about what consequences that would involve. A more significant policy decision, now that Brexit is behind us, it would be hard to imagine.

It has been a joy to hear today the vigour and the independence of our chief champions, the noble Lords, Lord Blencathra and Lord Hodgson of Astley Abbotts. I thank them and their hard-working committees, so many past and present members of which are here today. There seems to be a consensus among your Lordships, including those such as the noble Lord, Lord Bridges, with recent experience of ministerial office, that the scrutiny tools we have for delegated legislation are mismatched to their task. There is little guidance as to when statutory instruments are inappropriate, or by what procedure they should be made, or as to when Henry VIII clauses are allowed. There is no power to amend, and the power of your Lordships’ House to reject delegated legislation—a power undiminished by the Parliament Acts—lies unused, apparently out of fear that it is one of those powers that cannot be used without massive and destructive retaliation.

The Hansard Society in its current review, which I welcome, has a quite a job on its hands. No doubt it will propose sensible solutions, as others have before. But then comes the important question posed by the noble Viscount, Lord Eccles. Why would any Government favour fewer skeleton Bills and more scrutiny of delegated powers? Let me suggest two reasons, both connected with the courts. First and rather obviously, the courts can strike down only provisions that do not appear in an Act of Parliament. If the Act is reduced to a skeleton, the meat is taken off the bone and may be more easily devoured. Secondly, the stronger the scrutiny of Parliament, the less the courts will intervene. I learned recently that the French administrative court, the Conseil d’État, suspended no fewer than 51 Covid restrictions in the year to April 2021, including for the infringement of human rights to assemble, to private life and to worship. In some 200 other Covid cases, according to the court’s website, the Government amended their practices or were given advice by the court before judgments were issued.

Our courts are far less inclined to intervene, partly because of the weight they place on parliamentary scrutiny. The position was set out by Lord Sumption in the second Bank Mellat case in the Supreme Court. He stated that,

“when a statutory instrument has been reviewed by Parliament, respect for Parliament’s constitutional function calls for considerable caution before the courts will hold it to be unlawful on some ground (such as irrationality) which is within the ambit of Parliament’s review. This applies with special force to legislative instruments founded on considerations of general policy”.

He added that parliamentary review may also be enough in itself to satisfy the requirement of fairness.

My time is over. Perhaps I may give the last few seconds from the Back Benches in this debate to the Member of Parliament who deprecated what he called

“the new fashion of legislation by way of skeleton”

and concluded that

“on the whole the old-fashioned way of saying in an Act of Parliament what is meant is certainly the better method of legislation.”—[Official Report, Commons, 1/8/1899; cols. 1072-73.]

His name was Augustine Birrell KC, and his critique was addressed to the Marquess of Salisbury’s second Government in 1899. It is high time, I suggest, to act on those sound instincts.