Preparing Legislation for Parliament (Constitution Committee Report)

Lord Blencathra Excerpts

Wednesday 12th June 2019 Lords Chamber

[Lord Blencathra (Con)]

My Lords, I have the privilege of being the chairman of the Delegated Powers and Regulatory Reform Committee, and in this capacity, I will focus my remarks on the second of the Constitution Committee’s two excellent reports, on the delegation of powers. It is an impressive piece of work, and not just because it praises my committee on numerous occasions.

I thank my noble friend Lord Norton of Louth for his excellent presentation of the reports today, and the chairman of the Constitution Committee, the noble Baroness, Lady Taylor of Bolton, and all the members of that committee, not only for their generous recognition of the work of the Delegated Powers Committee in their report and elsewhere but for the collaborative working relationship which the two committees, and their officials, have developed over the years, to the benefit of the House and the greater good of rigorous scrutiny of legislation.

The Delegated Powers Committee’s role is to examine the appropriateness of every delegation in a Bill, and the level of scrutiny applied to it, while the Constitution Committee adopts a constitutional perspective. There is a complementarity in our relationship which serves the House well. I thank my noble friend Lord Hunt of Wirral for his exceptionally kind remarks about my committee and me, but I assure him that the Delegated Powers Committee was doing a fantastic job long before I became chairman, and it will continue to do a fantastic job long after I have gone. The reason for that is that we have some superb colleagues serving on it, one of whom will be speaking in the wind-up tonight, and we are served by an excellent clerk and four superb counsel with more than 100 years’ experience as barristers between them. They all know what they are talking about, and I would not survive without their expertise.

We share the view of the Constitution Committee that the proper balance between primary and secondary legislation is “not always respected”. It is because of this that the Delegated Powers Committee is needed, and more often than not, our reports include important recommendations on the delegation of powers or the level of scrutiny applied to them. Policing that boundary is our raison d’être and, as we said in our report on the Strathclyde review, events giving rise to the review,

“provided a stark reminder of the importance of our work”.

Since Strathclyde we have had the referendum and the decision to leave the EU. Brexit-related Bills have been introduced which have included the delegation of powers to Ministers that have been nothing short of breath-taking in some instances.

On the withdrawal Bill, the Delegated Powers Committee described,

“the distribution of power between Parliament and Government”,

as being at the very heart of the Bill—a distribution weighted in favour of the Government by significant Henry VIII powers ranging over, as we said, “an unprecedented number” of policy areas. I think we all accept that some Henry VIII powers were necessary in the European Union (Withdrawal) Bill, but where they were needed there should have been explicit sunset clauses to limit their duration. I am in no doubt now that government departments, including Ministers, civil servants in charge of policy and parliamentary draftsmen, saw the incredible potential advantages of Henry VIII clauses in that they could change any law they liked without having to bring primary legislation before Parliament. Thus we now get Henry VIII clauses routinely tacked on to Bills where they are not necessary.

Departments are also drafting regulations, making clauses of such width that again Ministers would be able to change whole rafts of law with little say by Parliament and to make laws which went much wider than the stated purpose of the primary legislation. Let us take the Healthcare (International Arrangements) Bill. My committee said that,

“the scope of the regulations could hardly be wider”.

The Bill, as stated by the Government, was supposed to make reciprocal arrangements as we left the EU to take care of Brits in Europe and Europeans in this country—a simple, sensible provision. However, it went much further than EU and UK reciprocal arrangements. My committee pointed out in our report that there was no limit to the amount of the payments which could be made, no limit to who could be funded worldwide and no limit to the types of healthcare being funded. The regulations could confer functions, powers and duties, including discretions, on anyone worldwide; and the regulations could amend or repeal any Act of Parliament ever passed. That is far more extensive than the Government’s stated purpose.

Then we had the Haulage Permits and Trailer Registration Bill, which we said was,

“wholly skeletal, more of a mission statement than legislation”.

We said we were “dismayed” at the Government’s approach to delegated powers in the Agriculture Bill, which we described as,

“a major transfer of powers from the EU to Ministers”.

However, to be fair, the Fisheries Bill, which looked like it had been written by a completely different department or bunch of civil servants, we commended as one of the finest Bills we had come across. So sometimes the Government can get it absolutely right and I am pleased to commend them for that. In referring to a provision in the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, we commented that Parliament was,

“being asked to scrutinise a clause so lacking in any substance whatsoever that it cannot even be described as a skeleton”.

Then, in addition to inappropriate secondary legislation, we get tertiary legislation, and raising taxes by tertiary legislation, and we had that wonderfully unique lawmaking power in Schedule 5 to the European Union (Withdrawal) Bill, a power last used in 1539, making law by proclamation—or, in the words of the schedule, by “direction”. Paragraph 2 of Schedule 5 permitted a Minister of the Crown to change the law by giving a direction with no parliamentary procedure applying to it whatever. We stated that a direction is what Henry VIII would have called a proclamation— there is a no real difference—and that the Statute of Proclamations 1539, which gave proclamations the force of statute law and later gave rise to the term “Henry VIII power”, was repealed in 1547 after the King’s death. We found it extraordinary that the Government should try to bring it back in this small area of a Bill 470 years later.

The exigencies of Brexit may have led Parliament into accepting some extraordinary delegations but we need to maintain our vigilance on policing the boundary between primary and secondary legislation. It is essential that we apply the same high standards of scrutiny to all Bills introduced into Parliament. The Delegated Powers Committee operates under a fundamental principle that powers are judged not on how the Government say they will use them at the moment but on what the law allows them to do at any future time—what any future Government could do with the powers created.

There are Bills other than Brexit Bills where the appropriateness of the delegation of powers is called into question. One of our most recent reports, which has already been referred to today, was on the Rivers Authorities and Land Drainage Bill, a so-called Private Member’s Bill of immense complexity but supported by the Government. That Bill caused our committee serious concerns for a number of reasons, not least our view that the Bill was, in effect, in our words, a “ploy” to avoid having to pass a hybrid Bill.

The Government even admitted in the Commons that the Bill applied only to Somerset but that, if they made it a Somerset-only Bill, it would be a hybrid Bill and would take, in the Minister’s words, three to 10 years to get through Parliament—a nonsensical claim in itself. They came up with this ruse to ostensibly make the Bill one which applied nationally to get around the hybrid Bill procedure. I consider that to be a gross abuse of our parliamentary procedures. It deprives the people of Somerset the chance to have a proper say, which they would normally get with a hybrid Bill. Even if 99% of the people of Somerset think that the substance of the Bill is the best thing since sliced bread, the other—hypothetical—1% should still have the right to have their case considered. We welcome the Constitution Committee’s unreserved support for this criticism. I hope the whole House will support me in moving amendments so that this Bill is converted back to a proper hybrid Bill, which it is in reality.

I want to conclude on the point made by the Constitution Committee in its first conclusion in its summary of conclusions and recommendations, where it says:

“It is a responsibility for all, including Parliamentary Counsel, to uphold constitutional standards in relation to delegated powers”.


On reflection, that is an exceptionally good point, which needs emphasis. In my opinion, criminal defence lawyers will lie, cheat and connive to get their client off. That is what they are paid to do. We expect different and much higher standards of government policymakers and parliamentary draftsmen.

Who thought of the ploy of dehybridising the Somerset land drainage Bill? There cannot be more than dozen MPs in the other place who know about hybrid Bills—they are the unlucky ones who have been forced to serve on the hybrid Bill committee. I am therefore certain that Ministers did not come up with this scam, although they must take ultimate responsibility. It had to be lawyers who thought of this ploy to get around parliamentary procedures.

Of course, Ministers will want to build fairly wide powers into a primary Bill for secondary legislation, but did they dream up this power of making law by declaration or taking powers from the EU healthcare Bill that would have permitted the Government to pay for a Texan having a hip replacement in Dallas? I think not. I am giving notice to departmental policymakers and parliamentary draftsmen, as well as to Ministers, that we may summon them before our committee not simply to justify the extraordinary powers being sought but to find out who dreamed up these attempts to get around our procedures in the first place. I think it is a very valid question.

I was about to conclude there, but my noble and learned friend Lord Mackay of Clashfern has prompted me to tell a little story from about 1996, when I was a Minister of State in the Home Office and we were signing off yet another massive criminal justice Bill. I was invited to go to LEG committee and was briefed by civil servants. It was agreed around all the departments: “Minister, there’s nothing to worry about. Everyone’s content. It’s a routine matter”. I had in my beautiful red folder a one-page note to that effect and a draft copy of the Bill.

I got to LEG committee and the room said, “It’s all straightforward. It’s all agreed. Nothing to worry about. We’ll introduce the Bill tomorrow.” The then Scottish Secretary—my noble friend Lord Forsyth of Drumlean —piped up to say, “Could the Minister of State please answer this point? The age of criminal consent is different in Scotland. In Clause 56(5), could he explain why this is the case?”. I pretended to flick through my notes but knew I had nothing on it. I had to say, “Well, I think it is probably not a material point. It’s probably some misunderstanding”.

At that point, the then Lord Chancellor—my noble and learned friend Lord Mackay of Clashfern—piped up to say, “Well, it is a material point. The Bill could be fatally flawed. The Minister of State must be able to answer this point”, which the Minister of State could not. The then Lord Privy Seal, the late Tony Newton MP—the late Lord Newton—had a cigarette in both hands by this time, saying, “Oh my God, this is terrible. The Bill is fatally flawed. We cannot lay it tomorrow. The Minister must go back to the Home Office”. I was sent with my tail between my legs because the Bill was apparently not properly prepared. Within 30 minutes of getting back to the Home Office, after some strong words, it was all cleared by the department; it was a misunderstanding. But the point of this little story is to reinforce the point made by my noble and learned friend Lord Mackay of Clashfern that Bill—and ministerial—preparation is everything.

Whether it is Brexit legislation or no, vigilance in respecting the critical boundary between primary and secondary legislation must be at the forefront of this House’s concerns. The Delegated Powers and Regulatory Reform Committee has a vital role to play in that and we will be undaunted in discharging our responsibilities.