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

Lord Wallace of Saltaire Excerpts

Tuesday 5th March 2013 Lords Chamber

[Lord Wallace of Saltaire]

My Lords, I approached this debate with considerable trepidation. When I first came into this House, I was told by several people that, after the Clerk of the Parliaments, the greatest expert on all matters of procedure was the then head of the Liberal Democrat Whips’ Office, Celia Thomas, who is now my noble friend Lady Thomas of Winchester. When I started to read into this subject, I discovered how little I understood about the processes of scrutinising secondary legislation and, indeed, about the difference between a remedial order and a legislative reform order. I now understand, and I hope I still will in a week’s time, but it has been a journey of exploration.

This has been a very useful debate, and I start by agreeing with the noble and learned Lord, Lord Mayhew, that this is a success story. What we have seen in this Chamber over the past 20 or 30 years is a gradual rise in its effective ability to give scrutiny. As a young academic, I was an adviser to Lords and Commons committees and I discovered that Lords committees were much more serious in many ways than Commons committees and much less partisan. Members had read their papers, they came and they asked about paragraph (15) and what precisely the Government thought they meant by it. That is, as the noble Baroness, Lady Smith of Basildon, said, a different function from that of the Commons, but it is a very useful function. We should be very proud of it and cling to it.

Much of the best work this House does is done in its committees, and I hope that will continue to be the case. There is a necessary tension between the Executive and the legislature and listening to this debate I was thinking that much of the press comment on British government is a matter of seeing a conflict between the Government and the Opposition, but there is also a very positive, necessary tension between the Executive and the Legislature, whatever that may be. We play our role—the Cross-Benchers and others in this House—by providing the detailed scrutiny that does not get on to the front page of the Daily Mail but does improve the quality of legislation. For that reason, I have more sympathy for the suggestion from my noble friend Lady Thomas of Winchester that we should move towards looking at draft SIs than for the Goodlad proposal that the House should assert its right to vote down. As the noble Baroness, Lady Smith, said, that should be regarded as the reserve option, the exceptional circumstance. Greater dialogue with the Government about progress on SIs is a much more effective way to influence.

When I first came into the House of Lords, I was asked what I thought the power of the Lords was. After a bit, I said, “I think it’s the power to embarrass”. That is quite an effective power in the dialogue we have with Ministers. The power to publish and to whisper to a visiting journalist that this Minister has not really got it right yet are quietly effective in the corridors of Whitehall, and that is the way this Chamber should operate.

A number of noble Lords suggested that the number of SIs and the area of subordinate legislation are growing. I am pleased to say that, from looking at the statistics, that is no longer the case. In the legislative year 2007, nearly 1,200 SIs went through. In 2011, there were some 750. Cynics might suggest that the longer Governments are in power, the more they are likely to resort to SIs. If that should be the case and this Government stays in power for long, I trust that Members of this House will point that out and keep Ministers up to the mark.

I have some sympathy with those who say that slower government is better government and that less legislation is better legislation. The problem, which we all recognise, is that in an era of 24/7 media and of lobbies insisting that Ministers should take on everything they are lobbying for, it is very difficult for Ministers to resist those outside pressures. It is thus up to Parliament to keep pushing back and saying, “Think about proportionality. Think about whether this is necessary. Think about whether this is desirable”.

I am fascinated—I now at last understand this aspect of Henry VIII powers. I thought when I first heard about Henry VIII powers that they were a way of keeping numbers in the House of Lords under control. I have sometimes wished that they might be reintroduced as a means of keeping the numbers down and allowing new blood to come in, so to speak. Henry VIII powers are clearly something we always wish to question. The question of how clear Governments should be about the implications when they put new legislation through is something we can accept as desirable in terms of good legislation. The Government accept all those criticisms and the House of Lords will, I hope, maintain its effort to keep the Government, of whatever variety, up to the mark.

The noble Baroness, Lady Andrews, incidentally, suggested that 80% of legislation consisted of SIs. I am not sure where that statistic comes from. If the noble Lord, Lord Pearson of Rannoch, was here he would say, of course, that 80% of legislation was forced on us by the European Union. I suspect these statistics are both a little—

[Baroness Andrews]

My Lords, I was saying that it has been calculated that 80% of the impact on people comes via SIs, not that 80% of legislation is made through SIs. That is why I find it difficult to source. I will try to find a source for the Minister.

[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.

[Baroness O'Loan]

Perhaps I may ask the Minister to check that the quantity of secondary legislation is declining. It is possible that the number of statutory instruments is declining while the amount of secondary legislation is increasing.

[Lord Wallace of Saltaire]

My Lords, I will get the Cabinet Office to check and will write to the noble Baroness and others if my figures are way out, but I am hopeful that we have seen a reduction in the past three years. I also hope that the efforts that the Government are now making to decentralise within England and to give a power of general competence to local authorities will result in a further reduction in the number of secondary legislative measures.

This has been a very useful and constructive debate. It is the sort of thing that the House needs to do from time to time. I add my thanks to the noble Baroness, Lady Thomas of Winchester. I continue to learn from her about the procedures of this House, and I hope that I will continue to learn from her, as many others will, for many years to come.