Democracy Denied (DPRRC Report)

Lord Lisvane Excerpts

Thursday 12th January 2023 Lords Chamber

[Lord Lisvane (CB)]

My Lords, looking at these two excellent reports, I must confess to a feeling of helplessness. The phenomenon which the two committees analyse so tellingly is a familiar one and was most effectively criticised in the splendidly excoriating contributions of the chairmen of the two committees earlier in the debate. I declare that I am a former member of the Delegated Powers Committee and am about to come to the end of my term on the SLSC.

For many years now, the boundary between primary and secondary legislation has been moving steadily upwards, with matters of policy and principle, as has been said by many noble Lords, being increasingly included in secondary legislation, with commensurately low levels of parliamentary scrutiny. There are attendant risks: just look at what happened with the tax credits SI, which was an entirely self-inflicted wound. At the same time, the powers which Parliament is asked to grant Ministers to exercise, with little scrutiny, grow ever more extensive. We have the baneful Henry VIII powers, on which the noble and learned Lord the Convenor has waged unremitting war for some time but, I hope he will not mind my saying, without inflicting significant casualties. Those are bad enough, but when Ministers are given the power to amend not only any statute passed at any time but even the statute resulting from the very Bill under consideration, one must ask what value is to be placed on the legislative process as a whole.

Distinct from Henry VIII powers are the sweeping powers given to Ministers for barely specified purposes. As the reports point out, this means that, when the enabling legislation is passed, our fellow citizens may have little idea of what the law affecting them may eventually look like. I am extremely grateful to the right reverend Prelate for his reference to that earlier in the debate.

It is common ground that your Lordships’ House leads the way in the exacting process of scrutinising secondary legislation, and I am sure that I am not alone in finding it ironic that this House, so often the subject of naive proposals for reform, is so far ahead of the elected House in seeking to protect the interests of citizens in this way.

This afternoon, our focus is on secondary legislation, but I fear that this is symbolic of a deeper malaise in the legislative process as a whole. A previous Prime Minister used to describe proposals as “oven-ready”, but what we have to deal with is the half-baked. Even allowing for the chaotic uncertainties of the last couple of years, this is not acceptable.

Take the development of policy, for example. What happened—and this was well mentioned earlier—to the idea of Green Papers, followed by White Papers, followed by legislation? The former Leader of the House of Commons rather gave the game away in his letter of 24 January to the chairmen of the two committees, in which he said that

“there will invariably be times when greater flexibility may be needed when legislating, for example as part of an emerging policy response.”

No; legislate when you have agreed the policy, not before. Do not rely on delegated powers to rewrite—or write—the bits of the Bill that could not be settled before introduction. Do not try to solve business management problems by bolting together proposals which should be separate Bills. The Levelling-up and Regeneration Bill is a current and indeed fairly dreadful example of the species. Try and plan for more Bills in draft—they will save you trouble in the long run and, incidentally, they can be a sensible way of settling on appropriate delegated powers.

On secondary legislation, it is frustrating that the Government could, if they wished, change things fundamentally as a matter of good practice. But, at the moment, we seem to be told that this is the way that things are done, rather than the more important question being answered of whether it is the way that things should be done.

I commend the work of the Hansard Society and declare to your Lordships that I am a member of its advisory panel. I hope that, when it reports, the Government will approach its recommendations in a positive and collaborative spirit.

Let us not deceive ourselves: delegated legislation is a real problem area, but it is not the only one. The legislative process as a whole needs a fundamental overhaul, but that would take a lot more than my five minutes—which I have already exceeded.