Strengthened Statutory Procedures for the Scrutiny of Delegated Legislation: DPRRC Report

Lord Soley Excerpts

Tuesday 5th March 2013 Lords Chamber

[Lord Soley]

I join everyone else in thanking the staff of the committee and I congratulate the noble Baroness, Lady Thomas, on the way that she chairs it and on producing the report. It has been very helpful.

For many years, I have had a concern that crosses over Governments: we have been increasing the amount of legislation by too much and, I am afraid, seeing it being increasingly badly drafted. I know that there are many reasons for that but the net result is that we end up with delegated powers that fill me with growing concern. As several noble Lords have said, if you read the words, “Delegated Powers and Regulatory Reform Select Committee”, you would think that a soporific way of starting the day. In fact, it is not just dry, it is arid at times, but—and this is a most important “but”—it is extremely important because it is about the way in which Parliament can control the Executive and what the Government are doing. If you use statutory instruments and other delegated powers excessively, unless you are very cautious about it, you will find that Governments have unexpected powers.

If people outside this House think that the subject is dry, they would be less inclined to think so when they consider the number of times that the committee has looked at a delegated power that would, if we had not had it changed, have allowed a Minister to increase fines to an unlimited level without an affirmative resolution of this House. Indeed, a quick look at tomorrow morning’s business in the Delegated Powers Committee tells me that there is another one on the Groceries Code Adjudicator Bill. If we do not get it changed, the ability of a Minister to fine by delegated power will have an unlimited price put on it. If people in the street knew that, they might quite rightly be a little alarmed.

I think strongly that Parliament has got to get better at dealing with scrutiny. I have held this view for many years. This House is very good at it but, having said that, with the increase in legislation, every time we pass more—and I am realistic enough to know that we cannot go back many years to when you could have far less legislation, because we live in a much more complex society—we have to think about the extra powers that government is taking, how we scrutinise them and how we hold them to account. That is really the context of this debate and it is very important.

I am glad that the Government have accepted a number of the proposals in this report. I do not wish to repeat them; I strongly agree with the proposals for improvement made by the noble Baroness, Lady Thomas, and echoed by the noble Lord, Lord Butler, a moment ago. The other key one, of course, which the Government have accepted is that they should not keep expanding the variety of orders that are made, which is increasingly confusing to members of the committee, never mind Members of the House. Heaven alone knows what would happen if someone outside this House tried to make sense of it.

At times like this, I often reflect that we used to make the assumption—if we go back a very long time in our history—that we could expect British citizens to know what was expected of them in law, and that they would know if they were in danger of breaking the law. It would be very difficult for anyone to know that now, including a qualified lawyer. This is why it is getting so much more important in our more complex society. I also hope that the Government will fully accept the recommendation to give reasons when they vary one of the existing orders. That is important.

We asked the Government—this has been mentioned a couple of times, but I want to repeat it—to confirm undertakings by the previous Government in respect of draft orders laid under Section 14 of the Legislative and Regulatory Reform Act 2006, the Fire and Rescue Services Act 2004 and the Localism Act 2011. I have looked again at the letter of the noble Lord, Lord Strathclyde—the former Leader of the House—written in November in response to our report, which was published in July last year. The final sentence of that letter says:

“Further consideration is being given to this point, and I will write to provide a full response in due course”.

Having had a long career in politics, when I hear a Minister use the phrase “in due course” I know that due course really means a long meandering river through the countryside that would make the Amazon look like a local village stream. It takes forever. It is frankly absurd that an answer to this question could not have been given earlier. If there is one thing I would ask the Minister to do clearly tonight, it is to give an undertaking that the Government will answer that question fairly soon. By fairly soon, I do not mean “in due course”; I mean, I hope, in the next month or so. It is unreasonable not to do so.

The committee also suggested that strengthened scrutiny should take place in respect of powers that were not actually Henry VIII powers, but very close to being such powers. That is important; we need to find a way of doing that. While I do not wish to elaborate on what has already been said about such powers, as a committee we clearly have to be attentive not only to Henry VIII powers but to those which are not quite Henry VIII powers but nevertheless give Ministers considerable powers. We need additional powers on that.

I do not know how many members of the committee or others would share my view, but I am in favour of the suggestion in paragraph 25 of the report:

“The House may wish to consider whether it might be more appropriate to take the bolder course of rationalising the entire range of current variations by legislation”.

We need to do that. I appreciate that that would need legislation and that it could not be quick. However, it would enable us to think much more strategically about how we approach this and to deal with the point rightly raised by the noble Lord, Lord Butler, with which I agree, that a number of these issues should be dealt with by a committee of both Houses. Put simply, at times both Houses are looking at the same things without knowing that the other House is considering them. I am tempted by that paragraph to say that we should go much further on this.

It has been pointed out already, and I do not wish to labour it, that the House does not always nominate a committee to undertake scrutiny of draft orders. At the moment, there are about six draft orders before the House which are not nominated to any committee. That again makes the suggestion of having a more strategic look at this problem quite attractive. The variety of these orders, the way in which they are being changed, the fact that some are not looked at at all and the fact that both Houses often look at some of these things simultaneously makes me think that a more strategic view would be better. It also could focus on how the two Houses emphasise the fact that Parliament must be able to control the Executive. That underlying principle is always there. If we could take a more strategic view, it might make a lot of sense.

It would also enable us to look again at some of the language we use. Saying to a person outside this House that something is a draft affirmative order or a super-affirmative order is more confusing than it needs to be. I sometimes think that the Henry VIII phrase is quite useful, because it implies authoritarian government, but it is not really meaningful to many people outside. Although I recognise the importance of having legal terms that at times have to be defined in legal or parliamentary drafting language, we should always bear in mind that unless we want everyone to have legal aid and to be able to see a solicitor, it would be a good aim for Bills to be able to be read and understood by an average member of the public. I know that that is a bit far-fetched but we should never lose sight of this: we are legislating for the public. It is the public who have to obey the laws, rules and regulations that are passed by delegated powers. We really have a duty to make legislation understood by them.

From an e-mail I received today, I understand that the Hansard Society is conducting a fairly detailed review of this whole area, which I very much welcome. I simply say to the Minister that perhaps he could take away the suggestion that that area is messy and not well understood. There is therefore a case for the House to find a way of reviewing it and seeing if we should not approach it by a form of legislation, as suggested in the opening lines of paragraph 25 of the report. Once again, I thank the staff and members of the committee, as well as the chair. Despite its title and, occasionally, its topic this can be a very interesting committee, where we do very important work which perhaps should be widely recognised.

--- Later in debate ---

[Lord Wallace of Saltaire]

I understand. This was an extremely valuable report, in particular for pointing out that we have wandered into a situation where there is considerable diversity—indeed, almost a confusion—of different sorts of arrangements under secondary legislation. I can imagine how these will have grown up with Ministers from different departments making specific concessions on different Bills. The committee is quite right to say that we should exert pressure to bring things back to as common a model as possible.

The former Leader of the House, my noble friend Lord Strathclyde, wrote to my noble friend Lady Thomas last November, accepting the committee’s conclusion that, wherever possible, existing procedures for enhanced scrutiny should be used. In his response, which I have deposited in the Library, my noble friend noted that there may be exceptions where existing procedures are not suitable, but where the Government sought to create a new procedure they would clearly set out the case for doing so.

The committee’s report also invited the Government either to set out the case for not requiring supporting documents to be laid with draft orders under Section 19 of the Localism Act 2011—to which a number of noble Lords have referred—or to give an undertaking to lay supporting documents when laying any draft order under that section. I can confirm that the Government have given an undertaking to produce material setting out the detail of, and the rationale for, any proposed order under Section 19 of the Localism Act 2011, and to provide relevant background to support the parliamentary process.

The committee’s report also looked at orders made under Section 14 of the Legislative and Regulatory Reform Act 2006. We welcome the recognition that the existing scrutiny procedures for 2006 Act are robust. The committees scrutinising such orders can choose which scrutiny process should be used. They also have the power effectively to oppose any highly controversial measures. Ministers are obliged to consider the committees’ recommendations and cannot easily set them aside. They would need to persuade the whole House to overturn any recommendation by a committee to reject an order.

In practice, any legislative reform order that has been identified as highly controversial during the consultation stage has been withdrawn. Some measures have returned with increased scrutiny in a Bill. Neither committee has ever felt the need to exercise its veto when considering draft orders. This is why the Government have not felt the need to renew the undertakings given by the previous Administration. This is not a change of policy. The undertaking was given by the previous Government in 2006, at a time when it was not clear how the powers in the Act would be used. It is now clear that the process of bringing forward draft orders and the scrutiny process has worked well. However, I recognise that some noble Lords have strong views on this issue, so we are willing to take it away and consider it further.

The Government believe that legislative reform orders are important tools to reduce burdens on business, taking forward deregulatory measures that do not fit into other legislative vehicles. The report also touched upon orders made under Section 85 of the Northern Ireland Act 1998, Section 102 of the Local Transport Act 2008 and various orders made under sections of the Local Government Acts 1999, 2000 and 2003. Some of these have been rarely, or never, used. Section 85 of the Northern Ireland Act has been infrequently used and, following the devolution of policing and justice in 2010, its use is likely to decline further. No orders have been made under the powers in the three Local Government Acts. In relation to the Local Transport Act 2008, the committee’s report on the original Bill at the time noted:

“We consider both the delegation and the level of scrutiny proposed for the powers”,

in these clauses “to be appropriate”.

The noble Baroness, Lady Thomas, touched on the mechanism by which we debate and approve secondary legislation, particularly the system of consultation and the time allowed for it. Any changes would of course be a matter for the Procedure Committee. I would not wish to pre-empt its discussions, but I acknowledge the importance of the process of consultation and of having a process which commands public confidence. Again, I will take that back to the Cabinet Office.

There is of course a great variety in the significance of secondary legislation laid before the House. It is worth remembering that Parliament itself delegates powers to Ministers and, advised by the DPRRC, decides which form of scrutiny—negative, affirmative or super-affirmative—is appropriate for any particular delegation. In addition, a significant proportion of secondary legislation is already published in draft, with the consultation process beginning long before instruments are laid.

The noble Lord, Lord Butler, suggested rationalisation of the committee structure and greater use of Joint Committees. I think a number of us would want to take that away and think about it further. I am more persuaded by the arguments of the noble Baroness, Lady Smith, about the different functions of the two Houses. My limited experience of serving on one Joint Committee suggested that the two Houses do not always blend terribly well. A great deal depends on the subject. To the credit of this House, we tend to approach things in a less partisan and more detailed manner. Perhaps there is an argument that maintaining a degree of duality may therefore be functional.

[Lord Soley]

I understand that. I have some concerns about the idea of making it totally Joint Committees; they are difficult. However, that does not rule out looking at the way in which the two Houses are examining the same bit of legislation at the same time, without being aware of each others’ views. In a way, it is also about harmonisation.

[Lord Wallace of Saltaire]

I take all those points on board. This is the sort of question that we would naturally want to continue discussing.

I very much hope that the quantity of secondary legislation will continue to decline. The general power of competence for local authorities, for example, reduces the necessity of detailed secondary legislation on a range of issues.