Democracy Denied (DPRRC Report)

Lord Hutton of Furness Excerpts

Thursday 12th January 2023 Lords Chamber

[Lord Hutton of Furness (Lab)]

My Lords, it is a great pleasure to follow the speech of my noble friend Lord Hendy, and to hear the maiden speech of my noble friend Lord Prentis. I have been a member of the Secondary Legislation Scrutiny Committee since 2021, and it has been a great privilege to serve under the excellent chairmanship of the noble Lord, Lord Hodgson.

As many others have said in this debate, at its heart this is a debate about the balance of constitutional power, and specifically the relationship between the Executive and Parliament. These two excellent reports chart the inexorable shift in this balance over recent years under Conservative and Labour Governments. In reading these two reports, there is only one conclusion to reach—that that balance has shifted decisively in favour of the Executive at the expense of proper parliamentary scrutiny. This is not a healthy shift. On one level, it undermines our democracy, it is not good for the law-making process itself and it has, from time to time, brought the law itself into disrepute, as we saw during the pandemic when extensive use was made of delegated legislation.

These two reports identify several problems with the process of making secondary legislation, all of which have been well referred to by the noble Lords, Lord Blencathra and Lord Hodgson. I want to highlight what I consider to be the greatest problem we are facing, which is the growing use of what has been termed “skeleton legislation”: primary legislation drafted in outline terms only and with all, or most of, the important policy details left to Ministers to determine by using their powers to make statutory instruments. Just in the past few weeks, we have seen some pretty good examples of skeleton legislation, with the Energy Prices Act and the Strikes (Minimum Service Levels) Bill. Crucial areas of the legislation are left entirely to Ministers to determine, and Parliament has had—at the time of considering legislation—little detail whatsoever. The real operation of this legislation is going to be determined entirely by the regulations made under it. Our report refers to many other examples of this type of legislation, and many Members of this House have referred to the Retained EU Law (Revocation and Reform) Bill, which is probably the best example of them all.

Much of this detailed legislation will become law, as I said, with little or no consideration by Parliament whatsoever. I fully understand and accept that Governments will want to use secondary legislation to implement many aspects of policy, and that makes absolute sense. However, if Ministers want to use these skeleton legislative vehicles, they really should be prepared to accept that this sort of power should be accompanied by enhanced levels of parliamentary scrutiny. To me, that is a reasonable quid pro quo. This could be done in a number of ways. Delegated legislation in skeleton Bills could be subject to the super-affirmative procedure, as the noble Lord, Lord German, suggested. That would allow an opportunity for Members to comment on draft regulations and suggest possible amendments. There is a more radical option: using the precedent contained in Section 27 of the Civil Contingencies Act 2004. Under this provision, amendments can be tabled, in either House, to any statutory instrument laid under the primary Act. I am not aware that this has ever happened. I am not sure whether, under the 2004 Act, any regulations have been brought forward, but that is not the point. It is possible to devise greater scrutiny over ministerial powers to make secondary legislation—and, if you want a precedent, you can find one in that 2004 Act.

I know that the Government do not favour any kind of enhanced scrutiny. As they said in their response to our report, they do not believe that such skeleton Bills can be readily defined. I do not buy that argument, and I do not think that anyone in this House today buys it. I fear that this is a smokescreen for further foot-dragging. We all know a skeleton Bill in this House when we see one. It is not beyond the wit of both Houses to devise a sensible procedure to deal with this glaring deficit in how we currently make most of our laws. It was a great shame and a missed opportunity that the Government responded to these two reports in such a cursory and dismissive fashion. But it is never too late for a change of heart, because we will have to find another way of doing things if we are serious about preserving the role of Parliament in our democracy.