Legislation: Skeleton Bills and Delegated Powers — House of Lords, 2022-01-06
Topic: Government Operations
Nicholas True (Conservative, Centre-right): My Lords, I am sad; I was seeking courteously to acknowledge the contribution made by my noble friend. I am grateful that he has reiterated what he said. I have said, and will say again, that the Government will carefully consider the points made by his committee and others, which embrace much of the second part of what he said I was referring to the efforts made by the Government to improve implementation. In the last few years, all departments have been asked to appoint a Minister and senior official to be responsible specifically for secondary legislation. Departments are responsible for the quality of their own secondary legislation, and Ministers can be asked to account for their department’s performance to the Parliamentary Business and Legislation Cabinet Committee. All statutory instruments laid by Ministers must now go through the PBL Committee triage process. This is relatively new. Departments are given laying dates to limit the number of statutory instruments being considered at any one time by Parliament. This process ensures that there is a steady flow of statutory instruments being laid before Parliament and therefore, I hope, facilitates better scrutiny. These changes have strengthened the Government’s approach to secondary legislation and created a clearer structure for accountability Before a Bill is introduced by the Government, we take steps to ensure that any and all powers contained within it are justified. Ministers are brought before the Parliamentary Business and Legislation Cabinet Committee, where the Bills are examined in detail. The Lord President of the Council, who chairs that committee, told the Delegated Powers and Regulatory Reform Committee earlier this year that he will "invariably ask for the powers to be justified" and that "it is in the interests of the Government to be as specific as possible in the Bills that have been brought forward." I have the privilege of being a member of that committee and can assure noble Lords that the Lord President is as good as his word Ministers must seek the agreement of the PBL Committee prior to introduction of a Bill. They must provide the committee with a delegated powers memorandum and the committee will examine each power and the justification for it. The Lord President wrote to the chairs of the DPRRC, SLSC and Constitution Committee setting out that—and I profoundly agree with this sentiment— "Bills with substantial powers, though sometimes essential, should not be a tool to cover imperfect policy development." I agree with what the noble Baroness opposite said about that. The PBL Committee is one mechanism through which this is safeguarded as the committee must be satisfied that the powers are necessary and essential before agreeing a Bill’s introduction. The committee, as the Lord President went on to say, "discusses every single power and every single Henry VIII power that comes forward. It has a note provided to it on the use of powers and the legal consequences of those powers. The law officers sit in and we have to be convinced that those powers are needed and are proportionate. The law officers are very important in this, particularly in relation to Henry VIII powers." The noble Viscount, Lord Stansgate, asked about the control mechanism. PBL is the check and the pressure to ensure that Bills are fleshed out at the first stage. Noble Lords can be assured that any Bills with delegated powers have been interrogated internally before being brought to this House and the other place. In every meeting on delegated legislation, consideration is of course given to the likely challenges to be presented in your Lordships’ House. As this debate demonstrates, your Lordships have a great interest in delegated powers, and I repeat that it is in every Government’s interest to ensure that before a Bill arrives here, each and every power is justified and subject to the appropriate parliamentary procedure Of course, this is a matter of judgment. Sometimes the DPRRC will make a different judgment. I and all Ministers fully respect that. The Government examine any report and concerns about these powers in a Bill seriously and bring amendments when necessary. There is, of course, further scrutiny of such powers when a Minister decides to use them. Your Lordships will be well aware of the differences between these procedures, and the Government greatly appreciate the work of the Secondary Legislation Scrutiny Committee and others in holding us accountable through their examination of instruments I am aware of the amendment tabled by my noble friend Lord Blencathra, and that of my noble friend Lady Williams, on the code of practice for non-crime hate incidents. I look forward to hearing speeches, but it is not right to begin the debate on the police Bill here or to discuss the amendments tabled to it. That is for another day, and other noble Lords will wish to take part. The House will have its chance to consider whether that is an appropriate delegation of power, as is right and proper I am also aware that the noble Lord’s committee has made recommendations in its report relating to guidance, and that a number of noble Lords, including my noble friend Lord Blencathra, the noble Baroness, Lady Andrews, and the noble Lord, Lord Davies of Brixton, have spoken on this. I agree that guidance is not law, as the Leader of the House of Commons said in evidence to the noble Lord’s committee when he stated: "I very strongly agree … that guidance is guidance, and the law is the law." That is right, but I have heard what has been said in this debate and we will carefully consider the recommendations of the report. We will carefully consider the reports of both your Lordships’ committees and will publish the responses shortly I am tempted to respond to many suggestions made in the debate. The noble Lord, Lord Janvrin and my noble friend Lord Bridges of Headley cast particularly fruity-looking flies. Your Lordships will appreciate that I will not respond specifically at this stage, but I can assure you that we are carefully considering those recommendations, including those that suggest amending the language of the Cabinet Office’s guide to making legislation. I do not wish to pre-empt the Government’s response today. I hope that we will have a further opportunity to consider that, but I cannot speak for the usual channels In a changing and complex world, delegated powers are necessary for the proper functioning of government. I acknowledge that the particular circumstances of the last few years have at times meant legislating at pace and taking a greater number of powers that at one time would have been inconceivable to many of us, to ensure flexibility as the situation evolves, especially in responding to the pandemic. As the pandemic abates, I am hopeful that we will find ourselves returning to a more predictable rhythm of producing and passing legislation. The noble Lord, Lord Wallace, referred to this. He will forgive me if I refer to his specific points on the Elections Bill separately The Government have confidence in their processes, and the processes in Parliament, to ensure that laws are necessary, clear and effective. I repeat: we will take on board the reports of the two committees and your Lordships’ comments, in what has been an outstanding debate. Where the Government feel that processes can be improved, we will endeavour to do so It is the Government’s constitutional role, and indeed their right, to put before your Lordships proposals for legislation they judge to be expedient to deliver on their manifesto commitments and to address the issues of the day. It is Parliament’s role to ensure that this legislation is effective, necessary and balanced. Your Lordships have a fundamental place in that Your Lordships’ views have been heard. I have listened to the debate with very great care. The debate is timely. I am confident that this balance between government and Parliament will continue to evolve for the better. I repeat that I hope the Government will, before too long, be able to respond to the reports recently published by your Lordships’ committees.