Legislation: Skeleton Bills and Delegated Powers

Lord Sherbourne of Didsbury Excerpts

Thursday 6th January 2022 Lords Chamber

[Lord Sherbourne of Didsbury (Con)]

My Lords, as a member of the Secondary Legislation Scrutiny Committee, I have seen us comment on thousands and thousands of SIs, and we have been very fortunate to have a brilliant team of advisers and clerks to help us do our work, so I am not surprised that, recently, a House of Commons report praised the Lords for the scrutiny and expertise that they bring to SIs.

However, when it praised us for scrutinising SIs, I asked myself what they mean by scrutinising. Imagine I am doing a deal and my lawyer says to me, “I’d like you to scrutinise the draft contract.” I look at it and say, “I have now studied it very carefully, but I do not like certain parts of it.” The lawyer says, “By scrutiny, I simply meant comment on it—you can’t actually change it; you cannot reject it; it is a fait accompli.” That is our position with SIs in this place. Except on the rarest occasions, that is what we do in the House of Lords when we scrutinise SIs. We pass thousands and thousands of them unamended; we are not allowed to amend them and, by convention, we are duty bound to pass them.

As other noble Lords have said, these SIs can impose very detailed and onerous restrictions and burdens on the day-to-day life of individuals, businesses and organisations. They often come into force immediately, and Parliament just waves them through compliantly. This is why we called it Government by Diktat, and it is no wonder that the Government are trigger-happy with SIs.

You might ask, “Why doesn’t Parliament reject them from time to time?” A Government with a majority in the House of Commons will always get its way, and in this House, if we were to reject an SI, as we cannot amend it, we would kill it stone dead, and we are understandably very reluctant to defy the elected Chamber when we are unelected.

As the noble Lord, Lord German, said, we cannot expect the Government to change their ways. We will go on having an avalanche of SIs, skeleton Bills and Henry VIII powers. It is Parliament that has to look at how to change our ways. We will have to have a really serious look, either through a Joint Committee or through our procedure committees, but the only way we will change the way we deal with SIs is for Parliament to grasp this nettle.