Strengthened Statutory Procedures for the Scrutiny of Delegated Legislation: DPRRC Report

Lord Haskel Excerpts

Tuesday 5th March 2013 Lords Chamber

[Lord Haskel]

My Lords, to most people outside Parliament, and to many inside Parliament, “delegated powers” is an arcane topic best left to specialists— something rather technical and dull. They are wrong. They are wrong because, as the noble Baroness, Lady O’Loan, reminded us just now, delegated powers are central to our democracy. I am grateful to the noble Baroness, Lady Thomas, for leading this debate, and for the skill with which she has led our committee.

The noble and learned Lord, Lord Mayhew, reminded us that Ministers cannot do everything, so they delegate some of their powers. In a democracy it is essential to see whether legislative power is delegated inappropriately, and to ensure that this scrutiny is carried out to an appropriate degree. The noble Baroness, Lady Thomas, reminded us that because of this the House became concerned about the unlimited discretion which some legislation gave Ministers in delegating powers by order or by secondary legislation, and so it formed a committee to scrutinise this aspect—and quite right too. That is entirely in keeping with the revising function of this House.

When legislation is proposed, the method of scrutinising delegated powers should be contained in that legislation. Some legislation makes no reference at all to scrutiny by Parliament. Some can be laid before Parliament and will be subject to no further debate but generally there is an affirmative or negative procedure, or a super-affirmative procedure, for scrutiny. However, in recent years many variations have been introduced; many Bills introduce their own form of scrutiny, which are listed by our report. As the noble Baroness, Lady Thomas, explained, the real purpose of the special report is to draw the attention of your Lordships to these variations of procedure and to make the point that they are helpful neither to Parliament nor to the public’s understanding of our work. I join the noble Lord, Lord Marks, in hoping that the outcome of this debate will be to arrive at some form of consistency and to rationalise the range of variations.

Not only your Lordships’ committee is concerned about this. When he was Lord Chief Justice, the appropriately named Lord Justice Judge said that his deepest concern related to the proliferation of so-called Henry VIII clauses that gave Ministers power to amend or repeal legislation by means of secondary legislation. He said that this would have the consequence of,

“increasing yet further the authority of the executive over the legislature”.

This is a warning of which your Lordships must take note.

It is, therefore, part of our duty to hold the Executive to account, and relative to this is the huge number of orders and regulations that come before your Lordships. All have to be scrutinised for delegated powers, and I cannot let this moment pass without thanking and congratulating the clerks and staff who run the Committee Office. They work under a lot of pressure so that the committee’s report on each item is published in time for your Lordships’ consideration. There are many tricky legal points, which our legal advisers, Peter Milledge and Allan Roberts, have to take into account. Their memory of precedent is quite phenomenal, and so are their tact and patience—all of which enable us to be consistent. I put my thanks on record together with the thanks of other noble Lords. Peter has been promoted, and so I welcome Nick Beach, who has moved up to Peter’s old place.

As I said, the proposals in this report are designed to improve the effectiveness of scrutiny in your Lordships’ House. One proposal regarding legislation is to standardise the procedures. We must also get an explanation of why the normal procedure will not work. However, what about orders and regulations? Most require Ministers to undertake consultation or lay supporting documents so that scrutiny can be thorough. Again, there has been a variation in the timing and requirements, and this, too, requires rationalisation. Some of the variations are contained in the original Bill.

Different Bills and Acts require orders to be scrutinised by different committees. However, as our report points out in paragraph 28, for six of the procedures the House has been unable to nominate a committee to undertake scrutiny of draft orders when they come along. It became urgent for the Leader of the House and the Procedure Committee to decide how the House would scrutinise draft orders under these Bills. The Bills are listed in our report. I am pleased to say that the Government have now indicated a response to this. I hope that your Lordships will accept these recommendations in the report as they will facilitate scrutiny.

When preparing for this debate, I learnt that at the height of the banking crisis, the Banking (Special Provisions) Act 2008 gave the Treasury the power to repeal any relevant statute bearing on the Act or any rule of law. Of course, this went through at a time of crisis. None the less, it is alarming because this is exactly what Henry VIII had in mind when he introduced his Statute of Proclamations in 1539. The recommendations in the report will help to ensure that this does not happen again in any future crisis.