Democracy Denied (DPRRC Report)

Lord Newby Excerpts

Thursday 12th January 2023 Lords Chamber

[Lord Newby (LD)]

My Lords, it is a great pleasure to follow the noble and learned Lord, Lord Judge. I start by congratulating the noble Lord, Lord Prentis, on his maiden speech. It is always a particular pleasure to welcome a fellow Member of your Lordships’ House who was born in Leeds. I am sure he will make a very substantive contribution to the work of the House, and I look forward to hearing from him in future. I begin with an apology on behalf of my noble friend Lady Thomas of Winchester, who, as a former chair of the Delegated Powers Committee, was very much looking forward to taking part in today’s debate. Unfortunately, she is indisposed. I am sure she will be watching the debate avidly and have clear views on it.

The reports we are debating today deal with one of the most fundamental and fraught relationships in a democracy: that between the Executive and the legislature. There is an inevitable and natural tension between the two, and different democracies strike different balances between them. In the case of the UK, we have developed a series of conventions about how the relationships work, which, broadly speaking, have stood the test of time. These reports demonstrate that this relationship has shifted in recent years, in that the Executive have successfully sought to increase their control of legislation by reducing the scope of primary legislation—which is subject to full and detailed scrutiny, amendment and sometimes rejection—in favour of secondary legislation, over which there is very limited scrutiny, which is incapable of amendment, and which in well over 99% of cases results in the statutory instrument being approved in its original form.

As the reports make clear, this increased use of secondary legislation has a number of causes. Sometimes the Bill is presented to Parliament before there has been time to do the detailed drafting. Sometimes Ministers themselves seem unclear about exactly how they expect the intended legislation to operate. In what appears to be an increasing number of cases, Ministers simply seek to maximise their discretionary powers at the expense of Parliament. Since the reports were produced there have been a number of very clear examples of this principle in practice. The Schools Bill—now thankfully withdrawn—was one, as is the Retained EU Law (Revocation and Reform) Bill. As the noble and learned Lord, Lord Judge, very eloquently pointed out, the Transport Strikes (Minimum Service Levels) Bill is another. There is clearly widespread agreement, not just in the reports but in today’s debate, that the current trend towards skeleton Bills and the increasing use of secondary legislation is unsatisfactory and should be reversed.

In his evidence to the Delegated Powers Committee, the then Lord President argued that proposed ministerial powers contained in upcoming legislation via secondary legislation were subject to intensive scrutiny by the public bills and legislation Cabinet committee. I sat on that committee for three years from 2012, and that issue was rarely discussed. If it was, it was in the context of whether widespread SI-making powers would cause problems in getting the Bill through your Lordships’ House. It was certainly never about whether in principle the Bill was giving Ministers too much power. Maybe since then things have changed, as he suggested. But the evidence of many recent Bills is that, to the extent that they have changed, they have done so for the worse. It would be a bad mistake to place any faith in the PBL committee to redress things.

Instead, we look to reports. They contain a swathe of sensible proposals about how to improve the situation. If implemented, they would undoubtedly go some considerable way to doing so. But the reports do not completely address how Parliament should respond when faced with proposals that still contain far too many discretionary ministerial powers to be exercised by secondary legislation. What should we do about it?

In the medium term, one way of addressing that is to increase Parliament’s ability to amend or reject an SI, as several noble Lords, including my noble friend Lord German, have suggested. For the Lords, this could take the form of asking the Commons to think again, in much the same way in which we do for primary legislation. For the Commons, it might take the form of requiring an amendment to be made before the SI is approved. Such an approach is being proposed by the Hansard Society in its delegated legislation review, due to be published later this month, which I commend. Such new powers should be accompanied, as the Hansard Society proposes, with other measures that have at their heart a new concordat between Parliament and government that would establish a clearer boundary between what should go into Bills and what should go into SIs. If that approach were to stand any chance of success, all the main parties would need to sign up to it in advance of the next general election and include such proposals in their manifestos. This is a good time to contemplate that, and I hope very much that the parties will do so as they are beginning the process of putting together their manifestos.

However, the next election is not being held tomorrow. For the next 12 to 18 months, we have to decide how to deal with legislation either currently before us or that will reach us at a later date. There are two ways in which your Lordships’ House can and should exercise its authority if it feels that the Government are taking too much arbitrary power. First, as a Bill goes through the House, we should make it clear that when we see too extensive delegated powers we are prepared to vote against them at clause stand part. Even the threat of doing this can sometimes concentrate ministerial minds, as we saw with the Schools Bill. If the Government insist, we should put the matter to a vote. If the whole Bill is little more than a skeleton Bill, we should in extremis be prepared to vote against the Bill as a whole. Secondly, when, as happens from time to time, the Government bring forward SIs based on existing legislation that the House thinks goes beyond what was envisaged when the Bill was debated, or that are simply badly drafted, we should be prepared to vote against them. The noble Lords, Lord Liddle, Lord Norton, Lord Sandhurst and Lord Cormack, and my noble friend Lord German and the noble Viscount, Lord Stansgate, among others, suggested that as an option. I realise that those on the Opposition Front Bench are opposed to this proposal in principle; they will not do it, in case the Conservatives do it to them if and when they are next in government. However, this is not a principle but a political calculation.

I know that many on the Cross Benches are concerned that voting against an SI breaches the conventions but, as a number of noble Lords have said, the Lords has always had the power to say no in extremis, and it should be prepared to exercise it—not on a regular basis, but when an SI is particularly deficient. The only alternative to taking this action is that we simply let the Government get away with it. No volume of condemnatory speeches and no regret Motions have the slightest effect. The Minister might be slightly discomfited, but frankly that is a small price that the Government are very willing to pay to get their measure through.

For the world outside Parliament worried about a cost of living crisis and a collapsing NHS, today’s debate must seem a mile away from their day-to-day concerns, but the effectively unfettered use of ministerial power will affect many aspects of their lives. It is not what they expect of their democracy—and they are right.