Corporate Insolvency and Governance Bill — House of Lords, 2020-06-16
Topic: Government Operations
David John Maclean (Conservative, Centre-right): My Lords, I will move that Clause 1 do not stand part of the Bill but I have no intention of seeking to delete the whole clause. I use this mechanism to draw attention to the Delegated Powers Committee’s recommendations on the excessive Henry VIII powers in the Bill. I am honoured to chair that committee Last Wednesday afternoon, we published our report. We drew the House’s attention to a number of concerns about the use of the delegated powers in the Bill. I am grateful to my noble friend Lord Hodgson, who referred to our report with great approbation in speaking to his amendments in the first group. I am also grateful to the noble Lords and noble Baronesses who high- lighted other parts of our report and some of our recommendations In our report, we draw attention to "New Part A1 of the 1986 Act, inserted by clause 1 of the Bill" That clause alone contains 10 Henry VIII powers allowing the Bill to be amended when it becomes an Act. I will not list them today; the noble Baroness who just spoke mentioned three of them in particular. There are also further Henry VIII powers in Clauses 23 and 27 and Schedule 1. As we reported, the powers in proposed new Part A1 "are all designed to be permanent changes to insolvency law. The justifications offered by the Government involve: ensuring that the provision remains ‘fit for purpose’; the need to act quickly; the undesirability of taking up Parliament’s time unnecessarily." We say in our report: "Ensuring that something remains ‘fit for purpose’ means little more than that the Government want to be able to change the provision by regulations if their policy changes. In our view"— it has always been Parliament’s view— "the presumption should be that where something needs changing which Parliament has enacted" in an Act of Parliament, "Parliament should enact the changes by primary legislation" in another Act of Parliament "rather than ministers make the changes by secondary legislation … As for legislating quickly, this is often best avoided", as we have seen time and again that urgent legislation usually needs amending sooner rather than later to plug gaps or correct mistakes The report continues: "And where legislation is needed quickly, the coronavirus outbreak has shown that Parliament is capable of legislating quickly" when necessary. It goes on: "As for not taking up parliamentary time unnecessarily, this is a matter primarily for Parliament. Parliament’s task is to scrutinise the Government, including the scrutiny of major legislation that has been drafted in haste and which confers wide-ranging powers on the Government." I have heard the criticism today that our hybrid procedure is not the perfect way to do Committee or Report work, but no one has said that we do not have the time to do some scrutinising. I believe that in our hybrid procedures we still have ample time to do more scrutiny of Bills before Parliament My committee concluded that "the Government have not demonstrated the need for the Henry VIII powers" we identified, adding: "We recommend that they be removed from the Bill." But we did not stop there. We also recognised the need for speed and flexibility and recommended that many of the regulations the Government may need to make should be done using the "made affirmative" procedure. We all know that all Governments under all Administrations prefer to bash things through on the negative procedure with no scrutiny; it is great if you can get away with it, and I did it myself when I was a Minister. The justification is always speed and that they cannot wait for an affirmative resolution. That is sometimes true, but the "made affirmative" procedure allows for exactly the same speed as the negative procedure but also allows parliamentary scrutiny afterwards We said in paragraph 22 of our report: "However, another procedure exists under which an affirmative instrument may be made and come into force before it is approved by both Houses. This is known as the ‘made affirmative’ procedure. Under this procedure, the instrument is able to come into force as soon as it is made, but it will automatically cease to have effect if it is not approved by both Houses within a specified period of time. The period specified for approval is usually 28 days or 40 days, subject to extension for periods of dissolution, prorogation or adjournment for more than four days." We said in paragraph 23: "Regulations under the ‘made affirmative’ procedure can be made and laid as expeditiously as regulations subject to the negative procedure." I suspect that many government departments are simply fixated on affirmative and negative and do not know that the "made affirmative" procedure exists. If they know it exists, they will still try to get away with the negative procedure None of these are a proper substitute for a real Act of Parliament to amend another Act of Parliament, but at least the "made affirmative" procedure is far better than changing any Act of Parliament without any parliamentary scrutiny at all. I therefore conclude by asking my noble friend to remove these excessive Henry VIII powers from the Bill.