Queen’s Speech

Lord Hodgson of Astley Abbotts Excerpts

Thursday 12th May 2022 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, it is always a pleasure to hear from the noble Baroness, Lady Fox of Buckley, whose contributions are always interesting, direct and not uncontroversial. Those Members of the House who were here for the opening speeches will have heard the brilliant exposé from the noble and learned Lord, Lord Judge, of the inadequacies and weaknesses of the current arrangements for scrutinising secondary legislation and, indeed, the increasing imbalance in power between Parliament and the Executive. I entirely agree with and support what he said. He went on to suggest that, as chairman of the Secondary Legislation Scrutiny Committee, I should be cast in the role of Wat Tyler. For those noble Lords who are not familiar with the details of our history, Wat Tyler was stabbed to death by members of the Executive—in this case, the King—at Smithfield on 15 June 1381. I think I had better get to my case quickly, before my noble friend sends the heavy mob here.

Several noble Lords have been kind enough to refer to the SLSC’s November report, Government by Diktat: A Call to Return Power to Parliament—the title really says it all—as well as the report from our sister committee, the Delegated Powers and Regulatory Reform Committee, Democracy Denied? This issue of scrutiny has been a problem for some years, but it is a problem, a weakness, which the conditions of modern life and the practices of the Government in recent years have made starker. Our committee followed up with a further report two weeks ago, What next? The Growing Imbalance between Parliament and the Executive, following on from what we said in November. A number of noble Lords have referred to it—the noble Lord, Lord Wallace of Saltaire, in particular—and I do not want to go through it. It is available in the Printed Paper Office for those who wish to consider this in more detail. However, among the most important things are the failure to provide impact assessments or examples of an actual consultation, poor-quality explanations of the purposes of the regulations and, last but not least, a continuing failure to distinguish between guidance, which is advice, and regulation, which is the law. Overall, I respectfully suggest to your Lordships’ House that this whole approach shows that the Government have insufficient respect for and understanding of the powers and privileges of the two Houses of Parliament.

Noble Lords will remember that, a few moments ago, I said that our latest report was entitled What next?. The Queen’s Speech outlines at least two examples which, if enacted as forecast, will represent a further power grab by the Executive—the Government. The first is the sexily titled Brexit freedoms Bill. The Government appear to plan to take wide-ranging powers to rescind, amend or alter legislation arising from our membership of the European Union and to do so only by secondary legislation, with all the inadequate scrutiny procedures that that implies. This will not be so much a Bill with Henry VIII powers and clauses; it will be a Henry VIII Bill in its entirety. I am not sure that those of us who voted for Brexit, as I indeed did, understood that “taking back control” did not mean taking back control but transferring it from Brussels to Whitehall without any parliamentary input along the way.

The second example is the Online Safety Bill, which I think my noble friend Lord Parkinson of Whitley Bay will have the pleasure of taking through your Lordships’ House very shortly. It is not my role to get involved in the delicate balance and trade-offs between free speech and censorship. The noble Lord, Lord Hunt of Kings Heath, made a very far-ranging exposé of this. However, a 226-page Bill, which leaves all the key policy details to be filled in later by secondary legislation, cannot be an appropriate way to proceed.

What is the answer? It is not—I repeat, not—to scrap the whole system and start again. First, the system works perfectly adequately in respect of negative SIs, the less controversial ones, and they account for over 70% of the work carried out by the SLSC. However, there is an important need for government departments generally to up their game on timeliness, assessing impact, consultation, clarity and a greater readiness to respond to and engage with concerns raised in the two Houses of Parliament. Where they are unable to do that, the instrument should be withdrawn until the department is able to respond properly.

But thirdly, and most importantly, Governments argue now that the rate of change in modern life outpaces the ability to bring forward primary legislation fast enough and therefore that secondary legislation must fill the gap. I have some sympathy with that view but, if you are going to grab a little, you have to give a little. Therefore, the challenge for us all now—Back-Bench Members of both Houses, the Government, Her Majesty’s loyal Opposition and the other opposition party Front Benches—is to devise a system to identify those key clauses and establish a new procedure to scrutinise, examine and, where necessary, amend them, including increasing the ability of external bodies and individuals to make their views known. Will it make the Government’s job easier? No, it will not—but it may well mean better law. Above all, obtaining a proper degree of parliamentary and public consent is a key element in maintaining general confidence in our democratic system.