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Legislation: Skeleton Bills and Delegated Powers

My Lords, this is a debate about power and the damage done to ordinary people and democracy when the workings of power are hidden. In this country, laws which affect people’s lives are increasingly being made through delegated powers, secondary legislation and regulations which do not require the parliamentary scrutiny that voters expect. However, voters themselves are largely unaware because the shift in power towards the Executive is cloaked in technical language. The heading of our debate today would make most people’s eyes glaze over, and I thank all my noble friends for recognising its importance.

During a global pandemic, it is one thing to restrict people’s freedoms by pushing rules through quickly using procedural mechanisms which require minimal

scrutiny by Parliament. Laws introducing the national lockdowns, limiting social gatherings and closing offices and schools were all made through public health regulations, the vast majority of which became law before being seen by Members of either House of Parliament. That is understandable—although I have been staggered to discover how keen Ministers have been to use this route. Over 100 such Covid regulations have been made in this way since March 2020. However, it is quite another thing to find that, beyond Covid, we are sleepwalking into a world where Governments increasingly rule by diktat, without even fully realising the cumulative effect of what can often seem to them like small tweaks made for efficiency.

Two excellent reports guide our debate today: the Secondary Legislation Scrutiny Committee report, Government by Diktat, and the report by the Delegated Powers and Regulatory Reform Committee, Democracy Denied. I am delighted to see that the noble Lords, Lord Blencathra and Lord Hodgson of Astley Abbotts, are both speaking in this debate, as are many other noble Lords who are much more expert than me.

Each of the reports contains a stark warning about a shift in power towards the Executive which has been occurring for decades. They describe in detail how Bills are often drafted only in outline, as skeletons

“so devoid of content they leave the real operation of the law to Ministers.”

Of course, the important detail is left to secondary legislation. They describe how Henry VIII powers let Ministers amend and even repeal Acts just by making regulations, and how Whitehall is using guidance and protocols as a form of disguised legislation, with legal effect but no oversight. According to these reports, hundreds of laws are being imposed on all of us, with no effective scrutiny and control by Parliament. This should be better known.

Exceptional powers are lent, not granted, to Governments by the legislature, in times of emergency. In such times, such powers should be returned in their entirety as fast as possible. Yet Governments of all stripes have increasingly sought to expand their power. In 2006, the Legislative and Regulatory Reform Bill sought to give Ministers the power to amend, repeal or replace any Act of Parliament by simply making an order. That was eventually withdrawn, after pushback from the House of Lords Constitution Committee. But during the financial crisis of 2008, the Banking Act gave the Treasury power to disapply any other relevant statute bearing on the Act, which was a pretty substantial power. In 2010, the Constitutional Reform and Governance Act allowed any Minister to make changes, again by ministerial order, as she or he considered appropriate. There are many other examples, which I am sure we will hear about in a moment.

Cynics might suggest that, when any Government have a large majority, they will get their way anyway, and so does this really matter? The principle of our parliamentary democracy is that Parliament’s core constitutional functions are to legislate and to hold the Government to account in order to protect individuals from the arbitrary exercise of power. One of the important aspects of secondary legislation, as you all know, is that, unlike Acts of Parliament, it is not

subject to several stages of robust scrutiny; it is debated only once in each House, if at all, and it cannot be amended—it can only be accepted or rejected as a whole, and wholescale rejection is, unsurprisingly, something this House has been reluctant to do.

I am not alleging any grand conspiracy to subvert the constitution. While this Prime Minister has perhaps been keener than some others on Henry VIII clauses, he is by no means alone in wanting to expedite business. And I am not in any way comparing him to Henry VIII, although in writing this I did reflect that he has actually outdone Henry VIII in some ways: he has broken with Brussels—the new Rome—and he has had his third marriage blessed by the Catholic Church. But I know that he believes in the sovereignty of Parliament; after all, he led a withdrawal from the EU in order to reassert our parliamentary sovereignty.

The truth, I think, is more banal. It is that Whitehall increasingly finds it convenient to use these powers. I know from experience, as do many of us here, that Ministers are usually mightily relieved if they are told that they can get something done without the tedium of having to go back to Parliament. Who would not be relieved? When you are in government, it can feel unbelievably hard to get anything done at all.

But the cumulative effect is, I fear, corrosive. To quote the noble and learned Lord, Lord Judge, in a speech he made as Lord Chief Justice, if Whitehall gets into the habit of using Henry VIII clauses,

“we are … in … danger of becoming indifferent to them.”

This indifference, I fear, encourages Governments to be too casual. Shortly before Christmas, the Home Secretary added 18 pages to the Police, Crime, Sentencing and Courts Bill which had not been there when MPs voted on it in July, including on the right protest, where this Government’s stance seems to me to be approaching the Orwellian. If the Executive add things to Bills after MPs have voted, or if they use skeleton Bills to push the detail to later, ultimately Parliament is not really clear what it is being asked to approve, and that is dangerous for democracy.

The committees write that the use of delegated powers may also conceal a growing tendency to draft Bills before thinking through the underlying policy. I will refrain from pointing out examples of where that might have been the case—I am sure we all have our favourites—but we should not be putting Parliament in a situation where it is not clear what it is being asked to approve.

What is the common defence for using such powers? Necessity. We are always told the same thing: “We need to get this done quickly, and trust us, we will not abuse the power”. But as William Pitt once warned,

“Necessity is the plea for every infringement of human freedom.”

When scrutiny is limited, essential checks on executive power are lost. I often wonder why those in power today do not think more about what they are going to feel when the other lot get into power tomorrow.

I will leave it to others to outline the detailed recommendations made by the committees, but I very much support the suggestion that it would be useful for end-of-Session reports from both committees to form the basis of regular debates in the House on

issues relating to the balance between primary and secondary legislation, the quality of legislation and the provision of explanatory materials.

I also wonder whether it would be possible to establish the equivalent of the Delegated Powers and Regulatory Reform Committee in the House of Commons, so that MPs can see the explanations for proposed delegations and get the opinion of a legal adviser with a higher profile. I say this partly because of the contacts I had with a number of Back-Benchers after I wrote about these issues a few months ago in the Financial Times. A number of MPs contacted me to say that they felt these were issues of real importance which they did not know enough about. If that is true, that is a gap in our democracy.

I will finish, if I may, with a personal reflection. Some years ago, I ran a campaign to expose miscarriages of justice that I believed were occurring in the family courts, which were taking children away from their families on the basis of evidence which, in my opinion, was not always sufficiently robust. My campaign resulted in the Government changing the law to open the family courts to more scrutiny. But to achieve that, we had to fight our way through thickets of legalese and rafts of procedural language which were preventing ordinary people seeing what was being done in their name. I think we face a similar but much bigger version of this in the issues we are debating today, and I hope that we can find ways to communicate their importance to the public.

In conclusion, laws affect our lives and rights. They should not be made by bypassing the very institutions which are supposed to be a check on power. We need a fundamental reset in the culture of both Ministers and senior officials, who should in fact be the gatekeepers of democracy. I beg to move.

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