Democracy Denied (DPRRC Report)

Viscount Hanworth Excerpts

Thursday 12th January 2023 Lords Chamber

[Viscount Hanworth (Lab)]

My Lords, I declare an interest as a member of the Secondary Legislation Scrutiny Committee. The traditional way of ensuring that the executive powers are responsible for their actions and that they are accountable for their effects has been the scrutiny of government legislation during the process of its enactment. However, this way of handling the issues arising out of detailed regulations associated with parliamentary Acts is no longer possible. Insufficient time is available to scrutinise these matters in sessions on the Floor of the House or in Grand Committee.

Increasingly, the regulations are enacted in secondary legislation via powers granted in the primary Acts of Parliament. The scrutiny of the regulations has been assigned to standing committees of both Houses. In the Lords, the recourse has been to assign the task of scrutinising secondary legislation to two committees. The Delegated Powers Committee polices the boundary between primary and secondary legislation, and it is empowered to object to inappropriate delegations of power to Ministers. The Secondary Legislation Scrutiny Committee attempts, on a weekly basis, to scrutinise a plethora of instruments produced under those delegated powers. It is a committee of 11 members which is served by a highly competent secretariat. It is overwhelmed by its task, and is able to operate only by virtue of a sifting process undertaken by the secretariat that draws its attention to the most important or the most contentious of the instruments.

It takes time for the members of the committee to gain sufficient knowledge of the nature of the legislative processes that they must scrutinise, and to become familiar with the behaviour of the government departments from which the legislation emanates. The members are subject to the same rule as the members of other standing committees that limits their time on the committee to three years. By the time that they have gained a competence in these matters, they must move on. It should be noted that two-thirds of the current committee is due to retire shortly. This has been brought to the attention of the authorities that govern the membership of committees. The objection that these retirements are bound to prejudice the effectiveness of the committee has been met with the bland assertion that any 12 Members of the House who might serve on the committee should be as good as the ones whom they are liable to replace. This assertion speaks of an old-fashioned tradition of amateurism that dominates our politics.

The government departments doubtless find the scrutiny of the committee irksome but, if they are well appraised of our democratic norms, they are bound to accept it with good grace. However, there is tension, with both sides pushing against each other. The judgment of the two reports that we are debating today is that the Executive have pushed too far and that much of the secondary legislation amounts to government by diktat. Also, a Government who have been in power too long have become impatient with the processes of democratic scrutiny. They have tended increasingly to resort to so-called skeletal legislation, which gives Ministers unbridled powers to create administrative regulations where formerly they would have been expected to enact their policies via primary legislation.

There is also a widening gap between the mythologies of politics and the practicalities of public administration. Many in the Government take an atavistic approach to regulations, which they tend to see as infringements on personal liberties and as impediments to economic enterprise. This contrasts oddly with the Government’s increasing use of secondary delegated legislation. This negative attitude to regulation is common, and has fuelled the agenda of the proponents of Brexit to scrap the retained European Union legislation before the end of this year. The truth is that almost all of it will need to be replicated in British legislation, which will be a wholly unnecessary exercise that will pre-empt the resources of the Civil Service. The burden of the scrutinising committees will be markedly increased, as will the objections to the undemocratic administrative steamroller.

The reports from the two Lords committees call for changes within the existing framework that might serve to redress the balance between government and Parliament in favour of Parliament. I have to wonder whether these changes will be sufficient. It appears that something more radical is required to cope with the mass of secondary legislation and to bring it all under proper scrutiny. Perhaps committees could be appointed that monitor and scrutinise the secondary legislation that emerges from each government department, and they should alert the rest of the House to whatever they find to be amiss, with greater powers to hold them in check. The Commons already has committees that shadow each department. These might take a more active role in scrutinising secondary legislation. The advantage of having such committees in the Lords is that they would be further from the reach of the Government than their Commons counterparts. Therefore, they would be able to conduct a more critical and effective oversight of the legislation.