Legislation: Skeleton Bills and Delegated Powers

Lord Blencathra Excerpts

Thursday 6th January 2022 Lords Chamber

[Lord Blencathra (Con)]

My Lords, I warmly congratulate the noble Baroness on setting out the case so thoroughly and eloquently on the inappropriate delegated powers that skeleton Bills contain.

In December, the Secondary Legislation Scrutiny Committee and the Delegated Powers Committee published joint reports heavily criticising skeleton Bills. Let us be clear: our criticism was not an attack on this current Government alone, since the abuses of delegated legislation have been growing under all Governments for the last 30 or 40 years—not just since Brexit or Covid.

What do I mean by abuses? Our Delegated Powers Committee report listed four main concerns, including: first, skeleton Bills, which we are debating today; secondly, the growing predilection of departments to stick Henry VIII clauses on to every Bill, just in case it might be convenient in the future; and, thirdly, the sub-delegation of legislative powers. These are laws made not even by Ministers as secondary legislation but by people or bodies who have been granted the powers to do so. These tertiary rules can have a big impact on citizens and are legally enforceable.

We will have a perfect example of this before us on Monday, when the Home Office will have to table an urgent amendment to correct unlawful guidance produced by the College of Policing. Our report on the police Bill criticised the fact that the College of Policing is not a statutory body but a private limited company, but the dear old Home Office had been merrily shovelling to it powers to invent statutory guidance. I have tabled an amendment to say that all such guidance should be held in abeyance until the college has been approved by Parliament, since its guidance could be illegal. Well, what do you know? The Court of Appeal ruled on Christmas Eve that its guidance on placing 110,000 innocent people on a criminal records list for non-crime hate crime was unlawful, and the Home Office tabled an amendment just yesterday to rectify it. Both Houses of Parliament will now have a chance to debate it for the first time. How much more possibly illegal guidance is being manufactured by third parties which will never be exposed unless it is challenged in court?

Our fourth concern was disguised legislation. Guidance which is advisory need not be approved by Parliament, but so much of it now is guidance which one “must have regard to”. While it is not technically mandatory, our experience is that everyone treats it as such because the issuing body tells them that it is compulsory.

A year ago, we had an excellent little Bill on school uniforms which permitted the Department for Education to issue guidance. I moved an amendment to say that the guidance should be subject to the negative procedure, but the official answer was—I paraphrase slightly—that it was merely advisory. The department had issued lots of guidance every year and had gotten away with it not being checked by Parliament before, so why should it start now? There was also the usual answer that the department would consult all the relevant experts and stakeholders, and that we parliamentarians should not worry our pretty little heads about it.

However, noble Lords ought to see the press release that the department issued in November with the advisory guidance. It is headlined:

“Schools will need to follow statutory guidance”


and talks about “new legally-binding guidance” that

“schools will be required to”

follow and saying that the DfE

“guidance means schools … must ensure”

and so on. That does not sound advisory to me. This guidance should have been seen by Parliament, even just under the negative procedure, but drafters of Bills have become wise to the fact that we and this House will criticise things called guidance. So they now use disguised terminology, calling guidance “determinations”, “protocols”, “directions”, “arrangements”—even a “public notice”. What a wonderful way to make laws: do not bother with MPs and Peers, just publish a notice in the London Gazette and, hey presto, new rules.

I have deliberately covered more issues than just skeleton bills because these are part of a whole menu of thoroughly inappropriate delegations that should have no place in a democracy. Of course every democratic Government in the world needs secondary legislation if they are to work, but the nature and extent of that secondary legislation is what matters.

I conclude by saying to my noble friend and all government Ministers that not a single one of our recommendations would prevent any Government passing their full legislative and political programme. It would simply mean that both Houses of Parliament would have the chance to debate, if we wished, a little more secondary legislation than we do now. How can any Government object to that?