Government and Parliament — House of Lords, 2016-06-09
Topic: Government Operations
Patricia Hollis (Labour, Centre-left): My Lords, first, my apologies for these glasses; my proper ones are somewhere in the Adriatic sea We, Lords and Commons alike, are increasingly failing the public. The Commons, of course, determines legislation but in the light of Lords scrutiny—with our delegated powers and scrutiny committees, and the time we spend debating SIs—we are better placed to do so The reason for our failure to the public can be described in two words: skeleton Bills. A skeleton Bill endows the Secretary of State with whatever powers he deems necessary, to do whatever he deems necessary, whenever he deems it necessary to do so. Bills, therefore, are future-proofed for any future Secretary of State in a future contingency to take any further future action without any further proper parliamentary scrutiny To take the recent skeleton Housing and Planning Bill, we floundered our way through it. When we probed to find out some detail about how many, how much—central issues one might think—the Minister could not say. She would say, "That will be in regs". What would those regs contain? She would reply, "We don’t yet know". Why not? She would say, "Because they are out to consultation". When did that consultation start? We would be told, "Recently". When will we get its findings? The reply: "Later, after the Bill becomes law". We would ask, "Then how can we know what this clause will do?". We cannot because the Minister cannot—not will not, but cannot—tell us. When regs finally appear, perhaps at odds with our limited understanding of the Bill, we cannot get at them; we can only bleat In other words, SIs are being abused in a way that destroys the very purpose of this House: our scrutiny role. As a Chamber we are not democratic, but we are rather useful. That is our justification. How, then, without seeking to challenge the primacy of the Commons, do we ensure that, through our scrutiny, the Government remain accountable to Parliament and therefore to the public, and do not seek to use SIs as a convenient shortcut through controversy I suggest four steps. First, consultation should precede—not parallel, let alone follow—legislation. We need to gather the expertise out there, expose policy intent and analyse impact beyond the half-baked gesture statistics we get served in lieu of a decent impact analysis. Secondly, following consultation, policy must be fully embedded and transparent in the Bill, and open to amendment, not left to SIs for future debate. Thirdly, SIs should therefore be relegated to their proper role—the adjustment of technical detail only, as the noble Lord, Lord Lisvane, has regularly argued. Finally, those affirmative and perhaps more controversial SIs that come before us must be effectively scrutinised. How? We cannot amend them, obviously, without engaging in a ping-pong that treats them like primary legislation. To vote against destroys; to regret is to be ignored. We cannot get at them. Instead, we must have the power to pause. Over the last 15 years we have had several major reports proposing that the Lords might wish very occasionally to delay the automatic passage of an SI carrying a heavy public policy load and ask the Commons and the Government to think again, and, when they have, of course the Lords acquiesces. The usual channels would sort out urgent matters, including security, where delay would be wrong. We need that power to press the pause button for a meaningful period, perhaps for 28 sitting days. The Government could wait it out, and the SI would become effective. But they might also—especially if Commons Back-Benchers are increasingly perturbed, as with tax credits—use that delay, in my view rightly, to change their mind In summary, there must be no skeleton legislation. Consultation should precede, rather than parallel or follow, parliamentary scrutiny; otherwise what is the point? Policy is to be embedded in the Bill, not carried by subsequent ungetatable SIs, which should be restricted to technical and minor detail. Draft regs or written statements of what those regs will contain should be published between Second Reading and Committee so that Bills can, if necessary, be amended accordingly. It can be done. The noble Lord, Lord Freud, worked with Committee members during the passage of the then Welfare Reform Bill in 2011-12 to do precisely that. We worked on and developed regs together. It can be done—if, of course, the Lords Minister is a player, not merely a messenger Finally, affirmative regulations that this House believes carry previously unexplored or controversial policy content could be paused for further reflection—I suggest for 28 sitting days—by a delay Motion, which then accepts the primacy of the Government in the Commons. This set of proposals would allow us to scrutinise public legislation, as we should. Asking the other place sometimes to think again on SIs, as we do with primary legislation, would help to justify our role as an unelected House, while ensuring that the Commons retains the last word. It would produce infinitely clearer and more transparent legislation, and those whom that legislation affects will know where they stand from day one; that is impossible with regs out there somewhere in the ether, which may be drawn down or not. Above all, it would allow us to serve the public as we should, for we have no other purpose and no other reason as a House for our existence.