Democracy Denied (DPRRC Report)

Lord Janvrin Excerpts

Thursday 12th January 2023 Lords Chamber

[Lord Janvrin (CB)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Fookes, and I am glad she was not my teacher. I declare an interest as a current member of the Delegated Powers and Regulatory Reform Committee and a former member of the Secondary Legislation Scrutiny Committee. I too pay tribute to the staff of these two committees, who provide incredible support, week in, week out.

These two hard-hitting reports highlight the continuing and growing misuse of secondary legislation through unnecessary Henry VIII powers, skeleton Bills, and disguised and tertiary legislation. Together, they express real disquiet about what is going on. This is not surprising. As the titles of the two reports suggest, the concern about secondary legislation scrutiny goes to the very heart of the balance of power between Parliament and the Executive.

This is of major constitutional significance and, as we have heard, it has real, practical consequences. Effective scrutiny makes better law, but secondary legislation is not subject to effective scrutiny because, to be effective, scrutiny ultimately entails an ability to amend or at least to think again. This lack of effective scrutiny is the essence of the problem addressed by these two reports.

Of course, it is easy to see why nothing gets done. Parliamentary time is in short supply, the wider constitutional agenda is pretty full, and secondary legislation is seen as something for constitutional technicians. But above all, turkeys do not vote for Christmas, and Ministers are not going to fall over themselves to limit their own powers.

Let me try to remind the Minister why he might urge his colleagues to take a longer view. First, the current situation is a muddle and inherently unstable. Few understand the present complicated range of scrutiny processes and procedures, and the present all-or-nothing approach rests on a potentially fragile understanding, challenged in the past, that the Lords does not vote down secondary legislation. Secondly, the problem will not go away. Brexit and Covid have highlighted the problem, while the temptation to produce more and more contentious Bills seems insatiable. There is wide and growing concern, and not just in this Chamber. Thirdly, and most importantly, the issue is above all about public trust in our democratic system. As others in this Chamber so effectively remind us, we do well to recall the importance through history of the balance of power between Parliament and the Executive. We only have to look across the Atlantic to remind ourselves of the apparent fragility of even the strong democratic systems in a world of populism and social media.

What should the Government do? The very minimum would be to look again at the suggestions in these two excellent reports to make the existing procedures work more effectively. The government responses were disappointing and, in my view, short-sighted. I ask the Minister to spell out in detail why skeleton Bill declarations, a scrutiny reserve or more rigorous avoidance of disguised and tertiary legislation should not be pursued.

Beyond this, I urge the Government to review the whole question of how best to scrutinise secondary legislation, including the power to amend or think again. I suggest using as a starting point the current Hansard Society review, which is about to issue its preliminary findings. With his long experience of constitutional matters, the Minister is well placed to take a lead on this, perhaps by setting up a Joint Committee of the Lords and the Commons to consider a new secondary legislation Bill. Effective Commons engagement is crucial, despite the Strathclyde review on the balance of power between Parliament and the Executive—and not Lords versus Commons, as has already been pointed out.

This is a fundamental constitutional issue, with practical consequences for every citizen in the land. The present system is a mess and crying out for reform. It is surely time to act.