Legislation: Skeleton Bills and Delegated Powers

Lord German Excerpts

Thursday 6th January 2022 Lords Chamber

[Lord German (LD)]

My Lords, congratulations to the noble Baroness, Lady Cavendish, and amen to everything that has been said. I shall concentrate on the antidote to the legislative creep that has been described so well by earlier speakers.

If we are to continue to get skeleton Bills and skeleton clauses—or, as the Government like to call them, enabling Bills and enabling clauses—we must have better provision for examining secondary legislation. The important balance is between the legislature and the Executive. That is the cornerstone of a functioning democracy. Together with the judiciary, the balance and independence of each are critical for them to truly act as the representatives of our people.

I deprecate the use of delegated powers as a substitute for imperfect policy-making. I want to look at the issue of electric scooters. The delegated power that gave electric scooters the right to exist in this country only if they were from a hire company, they could drive at no more than 15.5 mph, and anyone using them had to have a driving licence has been outshone by the over 100,000 electric scooters operated illegally across this country. In fact, I was driving at 30 mph down a 30 mph road and was overtaken by an electric scooter. So noble Lords can imagine that this is an example of what delegated power is dealing with, as a substitute for imperfect policy-making.

Looking at the problem from the other end of the telescope, what can be done to achieve a proper role for the legislature in retaining its crucial job of scrutiny and ensuring that our laws are fit for purpose? There are three ways outlined in the excellent reports that the two committees have produced. One is an enhanced procedure allowing Parliament or committees of the two Houses to comment on a draft instrument before the final form is laid. The second is to amend the Statutory Instruments Act 1946 to allow enhanced scrutiny and amendments to be made to secondary legislation. The third is to require Ministers to undertake consultation on any secondary legislation derived from skeletal clauses or Bills before bringing them before Parliament, and for those pieces of legislation to introduce and include a report on how the findings of the consultation have been taken into account.

I would like to add a fourth: a flagging mechanism where either House could indicate that a piece of secondary legislation deriving from a skeletal Bill or clause was unfit for purpose or failing to meet its declared intention. The flag would require the Government to temporarily withdraw the instrument, look at it again and produce a revised version.

I am not wedded to any of those four proposals or any combination of them, and there may well be more, but, in the light of the fundamental concerns raised both in this debate and in the two reports to the House, there is an urgent need for action by both Houses, preferably together, in order to inquire into the changes that we need to undertake to fulfil our legislative function and to recommend a way forward for Parliament.

It is genuinely Parliament’s role to investigate this. It is our role as a legislature, which is gradually being eroded. As a first step, would it be possible for both Houses to co-create a committee or an inquiry to look at these matters and bring forward suggestions to both Houses on how we could improve the situation? It is clear that the creep cannot continue, but both Houses together can make it stop.