Democracy Denied (DPRRC Report)

Lord German Excerpts

Thursday 12th January 2023 Lords Chamber

[Lord German (LD)]

My Lords, I would like to follow that by also looking at how we can be braver, in both this and the other House. Much of the debate today has focused on a call for the Government to mend their ways, but I would like to look at what Parliament itself can do. The key question I pose is whether the powers exercised by government have strayed beyond the founding concepts of our parliamentary democracy. There are wiser and more knowledgeable Members in this debate who have an exact understanding of these foundations, the history behind them, the royal prerogative and the nature of the powers transferred to the Executive.

However, I pose that the fundamental premise of our democracy must surely be that what Parliament has granted, it can take away or alter. The Government will undoubtedly argue that Parliament grants powers over secondary legislation by passing the primary legislation. However, the tools available at the primary legislation stage are very limited. My noble friend Lord Wallace, and many others, have cited the lack of policy intent which is described within the primary legislation. So what Parliament is usually left with is a choice between the affirmative or the negative procedure, perhaps occasionally throwing in the super-affirmative procedure, which is an infrequently used tool in the box. Following the premise that what Parliament can provide, it can also amend or take away, some solutions to the issues raised in these reports rest in the hands of Parliament.

I must say additionally, however, that there is a major impact on the Senedd, the Welsh Parliament, which is faced with secondary legislation in areas of policy it has powers over but has no way of making that secondary legislation itself and no veto over the powers that are made. This is particularly relevant to primary legislation enacted prior to primary legislative powers being granted to the Senedd, and where legislative consent Motions have been passed to permit Westminster to legislate on its behalf. There is some limited “consultation”, in inverted commas, with the Welsh Government, but there are no powers in the hands of the Senedd.

If we accept the fundamental premise of these reports, Parliament must take action to redress the balance. Obviously, any solution to this problem, as the noble Lord, Lord Janvrin, has pointed out, must have the support of the House of Commons. It would be absurd for the unelected Chamber to assert democratic rights which do not have Commons support. This is some challenge because the Government rely on their majority in the House of Commons and will want to secure that majority for getting their legislation through unamended. To avoid the extent of that pull in the other direction, it would be sensible to focus on the small steps that lie behind the concerns expressed in these reports. To my mind, that means a sharp focus on the ability of Parliament to amend or require the Government to think again on matters contained in their proposed secondary legislation.

I very much value the contribution from the noble Lord, Lord Norton of Louth, about renaming a fatal Motion a “Motion to refer back”. Most organisations in this country will have policy motions before them—political parties do—which are referred back for further consideration. If we could make it absolutely clear in Parliament that that is our intent, there is no reason we should not refer back matters which this Parliament feels are inappropriate or need improvement or interpretation to be able to produce good law. The objective is to create one or two new tools in our parliamentary box that would allow us to deal with these matters and to lay them out.

The ability to amend is crucial as well. There are obviously some significant parts of secondary legislation where some amendment would make a difference and make it an improved law, so the ability to amend ought to be discussed with our colleagues in the other House as an important tool which would allow Parliament as a whole to do a better job of ensuring that legislation is fit for purpose and better law in general. The first small-scale reform process must be to create a dialogue within this House, within the House of Commons and between the Houses with the important step of taking forward a Joint Committee of inquiry so we can make these changes and make them stick. If we believe in the scrutiny powers of Parliament, we should not be afraid of amendment and making sure that Parliament takes action to address the balance in legislative powers.