Democracy Denied (DPRRC Report)

Lord Sandhurst Excerpts

Thursday 12th January 2023 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, these are two excellent reports; sadly, they are not the first. As the noble Baroness, Lady Drake, has just reminded us, the Constitution Committee expressed serious concerns in its 2018 report, The Legislative Process: The Delegation of Powers, about the use of statutory instruments to give effect to significant policy decisions. It identified the core problem as the absence of a genuine risk of defeat with no amendment possible, which I shall come back to.

During the pandemic, over 400 statutory instruments were made. The vast majority took effect with no scrutiny at all. Legal changes were often set out in guidance or announced in media conferences before Parliament had even had the opportunity to scrutinise them. I wrote papers about that.

In June 2021, the Constitution Committee, to which I and others gave evidence, reported in COVID-19 and the Use and Scrutiny of Emergency Powers. This identified serious weaknesses in the way a huge body of regulations was made. It pointed out that the Government are required to report, explain and defend their policies. When scrutiny is limited through the fast-tracking of legislation, or the extensive use of secondary legislation, essential checks on executive power are lost.

However, 18 months later, here we are again. What is to be done? I endorse the recommendations made in these splendid reports. Time is tight, so I will focus on four points. I acknowledge that delegated legislation is necessary. Modern society is complex and changes too fast. Government often needs speed, flexibility and adaptability if it is to serve society.

First, at the heart of the problem perhaps, as others have said, is the all or nothing principle. We must address this. We must at least make more use of the delayed affirmative procedure. Further, as others have said, the two Houses should work to introduce a convention and a mechanism whereby the other place may reintroduce a statutory instrument which this House has rejected, or send it back amended on the basis that it will not be rejected a second time. The elected Chamber will then prevail, but after consideration and after having heard serious debate in this House.

Secondly, sunset provisions should be used more frequently. These would clear undergrowth, make for cleaner regulation and lessen the burden on business.

Thirdly, tertiary delegation is dangerous ground. When I studied administrative law 50 years ago, the maxim was “delegatus non potest delegare”. It seems all that is gone. Not only is Parliament’s scrutiny lost—so is the oversight of the Minister. The Secondary Legislation Committee is absolutely right that, when a statutory instrument includes a delegation of power, the Explanatory Memorandum must provide a full explanation of why the power is needed and of its scope. In my view, this will make those in the Minister’s office show their reasoning. They will have to think about it first, like a judge does when he gives his reasons in court.

Fourthly and finally, I turn to statutory guidance. We have heard about this from others. The Department for Education’s website today says:

“Statutory guidance sets out what schools and local authorities must do to comply with the law. You should follow the guidance unless you have a very good reason not to. There is some guidance that you must follow without exception. In these cases we make this clear in the guidance document itself.”


In this way, statutory guidance has escaped all scrutiny. This morning, the Department for Education’s website listed—I have them here—53 unscrutinised statutory guidance publications for schools and authorities. Of course, there are practical reasons for this, but we really must look at this more carefully.

So I endorse entirely what my noble friend Lord Blencathra said on the issue of guidance. Something must be done. Let us take back at least a little control.