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Lords debate landmark reports from Committees tasked with scrutinising primary and secondary legislation

31 January 2023

On 12 January 2023, Members of the House of Lords debated two hard-hitting cross-party Select committee reports which expressed considerable alarm over the increasing tendency of all governments in recent years to adopt procedures which have greatly reduced Parliament’s role in the legislative process.

The reports debated were by the Secondary Legislation Scrutiny Committee (SLSC), entitled Government by Ditkat: A call to return power to Parliament and the Delegated Powers and Regulatory Reform Committee (DPRRC), entitled Democracy Denied? The urgent need to rebalance power between Parliament and the Executive. Each contained a stark warning about the shift in power towards the executive. The debate took place on motions by Lord Blencathra, former Chair of the DPRRC, and Lord Hodgson of Astley Abbotts, Chair of the SLSC.

The debate can be viewed on Parliament TV or accessed via transcript in Lords Hansard.

The debate attracted notable contributions from 35 Members across the political divide who supported the call for constitutional reform made in both reports.

Opening the debate Lord Blencathra quoted from his Committee’s Report:

“a critical moment has been reached and it is now a matter of urgency that Parliament should…take stock, and consider how the balance of power can be re-set”

He went on to explain that while secondary legislation performed a valuable function, too often the impact was disguised either where law making powers were given to other bodies- effectively tertiary legislation - or were given other ‘fancy names’ – including guidance, determinations, protocols, directions, arrangement and public notices.

Lord Hodgson drew attention to the increasing use of skeleton or framework bills. As he pointed out, “these skeleton clauses are so devoid of content that they leave the real, practical application of the law to a ministerial pen or secondary legislation”.

He went on to highlight the growing misuse of secondary legislation:

“Secondary legislation should be restricted to what it says on the tin: issues of secondary importance. But, increasingly, this is not the case.” He said that this development required a new improved scrutiny procedure for the regulations now being used to introduce major policy decisions.

During the debate that followed some 35 peers from all sides of the House spoke, supporting the thrust of the two Reports.

Baroness Andrews pointed out that:

“This is not a party-political issue; it affects both Houses, and it has arrested the attention of people outside this House who are concerned about the growing impotence of Parliament.”

In an impressive maiden speech, Lord Prentis of Leeds explained:

“I come at this from a different perspective because, until only a few weeks ago, I was on the outside, looking in. Like many others, I have seen the growing public distrust of our parliamentary systems, not only in the devolved nations but across the UK. The reasons are complex, but we ignore at our peril the extent to which a democratic deficit can call into question the institution itself.”

This theme was taken up by Baroness Prashar in her description of:

“the “Whitehall culture”; which “is also about the leadership provided by political leaders. Parliament is seen as an irritant, a constraint which delays or obstructs business.”

Lord Hutton picked out the need to achieve a balance:

“If Ministers want to use these skeleton legislative vehicles, they really should be prepared to accept that this sort of power should be accompanied by enhanced levels of parliamentary scrutiny. To me, that is a reasonable quid pro quo.”

Winding up the opposition Lord Collins of Highbury made an important commitment when he pledged:

“The Opposition supports these committees’ recommendations. Substantive components of policy should be decided and presented via provisions on the face of a Bill, not devised and introduced by secondary legislation after a Bill becomes an Act.”

While for the Government Lord Privy Seal accepted that:

“Important issues have been raised and, as Leader of your Lordships’ House, I will not only consider those myself but take the substance of this debate into wider consideration.”

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