Democracy Denied (DPRRC Report)

Lord Norton of Louth Excerpts

Thursday 12th January 2023 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I too welcome both excellent reports. My starting point is that good law is a public good, most law emanates from the Executive, and Parliament’s role is to ensure that the legislation that they bring forward is justified and as well drafted as it can be. We need therefore to have in place the means to scrutinise and influence legislation, be it primary or secondary; the need to ensure secondary legislation is scrutinised effectively is well made in the reports before us.

We have the means of scrutiny but we do not follow through in influencing the Executive. That is the problem, and I argue that there are two reasons for it. One is well identified in the reports before us—it is the attitude of the Executive—and the other is to be found in this House. On the first, as the Delegated Powers and Regulatory Reform Committee makes abundantly clear, the culture of the Executive is to see the delegation of legislative powers as a matter of political expediency. Ministers and officials have got so used to the convenience of employing delegated legislation that they not only neglect the fundamental principles detailed in the committee’s report but exhibit at times a rather lazy attitude to drafting. It is part and parcel of a wider attitude to Parliament, one borne in part of ignorance of Parliament.

The government response commits to the inclusion in the Guide to Making Legislation of the principles adumbrated in the committee’s report in order

“to remind departments, both ministers and officials and also the PBL Committee, of the constitutional principles underlying the relationship between Parliament and the executive.”

But why do they need reminding of something that should be ingrained as part of their culture? What is in the Government’s response is not so much a concession as an admission of a failure to comply with the provisions of Section 3(6) of the Constitutional Reform and Governance Act 2010. In replying, could my noble friend the Leader of the House explain what other steps are being taken to ensure compliance with this statutory duty?

I turn to the second part of my thesis: namely, that part of the reason lies with this House. The committees produce valuable reports, but they are toothless if the House itself is not prepared to act. There is little point giving a committee the power to bark if the House is not prepared to bite. As the noble Lord, Lord Butler of Brockwell, said in Tuesday’s Second Reading debate on the Financial Services and Markets Bill, Parliament’s reluctance to reject SIs makes such power “purely nominal”. When an SI comes before the House, we debate it but then agree to it. A regret Motion may be passed, but that constitutes an expression of opinion—one that, as far as I am aware, is invariably ignored.

A Motion to reject an SI is deemed a fatal Motion. It benefits the Executive to use such language; it is misleading. Rejecting an SI is not akin to rejecting on Second Reading a Bill that comes from the Commons. Voting down a Bill kills it for the rest of the Session; voting down an SI kills it until the next day. The Government can simply re-lay it with the odd word changed. If we were to keep rejecting it, that might be a different matter, but simply voting down an SI when first laid is akin not to rejecting a Bill but to passing an amendment and inviting the Commons to think again. Rejecting an SI is to invite the Government to think again, which they can do and, if necessary, submit a fresh SI, accepting the points made by the House. Despite what some have claimed, there is no convention that we do not reject SIs. The House has asserted its right to reject SIs and on rare occasions has done so.

We will be effective in our work in respect of delegated legislation only if we have the political will to act. We have the power. We owe it to the two committees that have reported to be willing to exercise it.