15
Examination of witnesses
Dr Ruth Fox and Sir Jonathan Jones.
Q1 The Chair: Thank you both for coming to this session. As you will know from your appearance before other committees, I have to read the cautions, which are as follows. This is a formal evidence-taking session on the record and being webcast live. A verbatim note is being taken which will be put on the public record in printed form and on the parliamentary website. We will send you a copy of the transcript to enable you to amend any errors. I ask my colleagues to declare, for the record, any relevant interests about this session. Without more ado, let us begin.
Our major thrust in the next 45 minutes is to discuss with you the effectiveness, or otherwise, of the scrutiny of secondary legislation and the changing relationship between Parliament and the Executive. You will probably be aware that this Committee and the Delegated Powers Committee have been publishing reports about the shift from Parliament to the Executive and have expressed alarm about this. We would like to begin by getting your views on the extent to which this new Bill is going to be a further step in that direction and whether we are right to be alarmed about it.
Sir Jonathan Jones KC: It is a further step down that road. The scope of this Bill and the area of law that it potentially covers is huge. It is extremely unusual to have a single Bill covering areas as wide and diverse as this one does, whether they be product safety or the environment or food or employment law and so on. This Bill potentially covers the whole area of law that we inherited from the EU after decades of membership and the scope of that is unprecedented. Coupled with that, the speed with which the Government intend decisions to be made under this Bill with the sunset clause—which I am sure we will discuss—creates an extremely unusual combination.
You have a Bill that potentially provides for a huge area of law to be reviewed, and possibly changed, within a very short space of time and changes of that magnitude could not be achieved by individual Acts of Parliament within that time. The Government have therefore chosen to use a suite of powers to make secondary legislation. This combination of factors means things will be rushed and may be missed. The nature of the scrutiny that can happen during that timescale will inevitably be very limited. It is a rather unusual example of the trend you have mentioned.
Dr Ruth Fox: I broadly agree and would add it is clearly another one of the skeleton Bills which this Committee, the Delegated Powers Committee, the Hansard Society and others have been so critical of. It is difficult to say exactly what the implications of the Bill are going to be because of the lack of any policy detail about the implications of the powers and it depends how Ministers will choose to use the powers, how often and in what ways. A fairly unique aspect of the Bill is the automatic expiry clause, the sunset clause, by which Ministers can simply choose to sit on their hands. If they do not save a piece of retained EU law, it will fall away next December, either deliberately because Ministers do not wish to save it, or inadvertently because they were not aware of it. If the Bill is granted Royal Assent in its current state, that process would happen without parliamentary oversight in terms of the loss of law.
Lord Rowlands: I am sure you have read, and heard in the Commons, Sir Stephen Laws’ defence of the Bill and I wonder if you might offer your observations on that and give us a critique of his defence?
Sir Jonathan Jones KC: There are judgments to be made about what level of scrutiny secondary legislation should get; there is no machine that will tell you what the right level of scrutiny is. I come back to my point that this Bill is unusual because of the scale and range of the law that it covers, and that means scrutiny is likely to be inadequate. With respect to Stephen Laws, he does not deal with the issue that Dr Fox has mentioned, which is the possibility and apparent intention that some law will simply drop off the statute book with no parliamentary scrutiny at all beyond the Bill itself. For me, those are gaps which, frankly, that explanation does not cover.
Q2 Baroness Watkins of Tavistock: You have alluded to the fact there is a great deal of criticism being levelled at the blanket nature of the current provision of the Bill; could you outline your principal concerns? We would also like to know whether you are concerned about how long the sunset clause might be—because it looks as if that might change—and also, how rapidly we would know what has been dismissed in terms of law.
Sir Jonathan Jones KC: A combination of factors in the Bill give rise to the concerns we have spoken about. The concept of the sunset provision is really problematic in a Bill like this that covers so much territory. A later sunset date would obviously be better because it would give more time for laws to be reviewed with less risk of things being missed by accident. The idea of setting an artificial timescale after which some laws will potentially drop off the statute altogether is a very strange way of legislating and is, as I said, problematic. The timescale set for this sunset clause is absurdly tight: less than a year in practice to conduct that exercise if and when this Bill gets Royal Assent. Incidentally, that is a shorter period than was allowed for the making of technical changes to retained EU law when we left the European Union. The EU Withdrawal Act 2018 created this concept of retained EU law and we had about two years to exercise the powers under that Act to make what were relatively technical minor amendments to ensure the law worked after the end of the transition period.
That exercise under the EU Withdrawal Act was complicated enough, but the purpose was not to make fundamental policy choices about what the new laws should be; it was, as far as possible, to provide continuity and consistency between the old EU law and our domestic law after we left. By comparison, it was a much less policy intense process than the one we are talking about now. I use that as an example of a process that was complicated enough and certainly some mistakes were made, but they were mostly corrected. What is being talked about here is a much shorter period and, in principle, a much more complicated process of actually analysing the content of the laws, deciding which ones we want to keep, which ones we want to change and which ones we want to get rid of. It is not for me to say how well the Civil Service will be able to cope with that; they will do their best, but it will be an immense challenge.
The final point I would make is this is not just a technical exercise for the Civil Service but an exercise in policy-making, in deciding what our laws should be now we have left the EU. That is not just for the Civil Service; it is for Ministers, politicians and people in both Houses of Parliament. A sunset provision of this kind does not allow for the type of consideration, debate and external consultation—which we may come on to talk about—you would expect that kind of exercise to require.
Dr Ruth Fox: If you think about how sunsets are usually used in legislation, they are inserted into emergency legislation, for example, as a democratic safeguard for parliamentary scrutiny, they can be used to deal with temporary provisions and they can be used in legislation that is perhaps trialling something and so, therefore, there is a limited period of time required. Obviously, they are sometimes used to ease the passage of contentious legislation through both Houses, so there is an opportunity for a review point. This is quite a different approach to a sunset provision because it does not empower the legislature; it empowers Ministers. What would normally be expected in a sunset clause is clarity about what law will expire, when it will expire and the process by which it will expire. This Bill really does not deal with any of those three provisions.
In terms of the length of the sunset, there is clearly speculation that 2023 may be extended. The letter regarding the Bill leaked from the Treasury during the Conservative leadership election campaign was on behalf of the Treasury which was headed by the now Prime Minister and sent out in the name of Lucy Frazer, the then Treasury Minister, to the Leader of the House of Commons and then, I think, to the Foreign Secretary at the time. That letter made it clear that, within the departmental write-around process on the Bill at that stage in the summer, the deadline being looked at was 2026. The letter clearly alludes to the fact that the Treasury is aware of a real concern in government departments about whether that deadline can be met in terms of the exercise involved in the review of retained EU law, particularly in departments like Defra and the Department for Transport, which, as the Government's dashboard has shown, have got very extensive swathes of retained EU law.
There was clearly real concern in the summer about whether 2026 was even viable; 2028 was mooted in some areas and there is some suggestion they may end up amending it in the Commons to 2026, but even that is tight. Even then, unless you deal with the sunset and the automatic falling away, you do not deal with the concern about inadvertent omission. The date is only part of it and the inadvertent omission aspect of it must also be a concern.
Q3 Earl of Lindsay: Is there a risk that the extent of the known EU retained law potentially subject to the sunset provision is imperfect and, as a result, certain policy areas will become inadvertently deregulated?
Sir Jonathan Jones KC: It is a risk. It is difficult to assess how big a risk it is because—although I was in the past—neither of us is in the Civil Service so it is not very easy to say how thorough a job will have been done to identify all the different categories of retained EU law potentially caught by this and would potentially be caught by the sunset. We do hear stories of new ones being discovered which makes you wonder how accurate the list is now; Ruth may want to comment on that.
The volumes are very large. We are talking about many thousands of pieces of EU law, and a piece of EU law is an interesting concept in itself. Counting is not easy; are we talking about whole sets of regulations or individual provisions? However, on any view, we are talking about a very large volume of EU law, and departments will no doubt be doing their best to identify what is covered, but there must be this difficult to quantify risk that some things will be missed. The consequence of something being missed is that it just drops off the statute book altogether, and it is impossible to predict what the real-world consequences of that might be.
The Chair: How is it put back in again?
Sir Jonathan Jones KC: Mostly, the Bill does not provide for a power to put it back in, so you would need new primary legislation to restore the law that you have lost or do whatever you wanted to do.
The Chair: Once it is gone, the Minister cannot stick it back in again?
Sir Jonathan Jones KC: That is right.
Earl of Lindsay: Given what you see as being the likelihood there will be legislation missed that therefore becomes inadvertently lost, do you have any confidence in the dashboard process?
Sir Jonathan Jones KC: That is really the point I was making. It is difficult to know because one does not know what one does not know. Recently, a further body of law was identified and, while it is a good thing they have identified it, I assume it is now being added to the dashboard. This then makes it very difficult to assess whether the dashboard as it now stands is accurate or whether there is something else lurking somewhere in a corner of government that has not yet been spotted. It is really difficult to assess. It is one of the inherent risks of making law in this way.
Earl of Lindsay: Can I just pick up the point you were making in answer to Baroness Watkins’ question about the fact the sunset provisions are, effectively, empowering Ministers rather than Parliament? If the Bill had been designed in such a way that it was Parliament able to sit in judgment on the results of the sunsetting exercise, would you feel more comfortable? Let us assume there was a timescale proportionate to the scale of the task.
Dr Ruth Fox: Yes, with the significant caveat that what we are talking about is making changes through delegated legislation. You will be aware the Hansard Society has serious concerns about the nature of that scrutiny process and the degree to which you really do have oversight and the ability to influence that process. I would still prefer primary legislation with more details so you would carve out the changes you want to make and put that in primary legislation. You would have the oversight of the Bill process and then the regulations that flow from that.
I recognise the Government's concern about management of parliamentary time. They have carved out financial services into a separate Bill so that will not be handled through this Retained EU Law (Revocation and Reform) Bill. There is talk that some of it in relation to tax issues and so on may be handled through the next Finance Bill. My preference would be primary legislation, but, absent that, a different way of doing it would be to take this dashboard and the body of retained EU law they have identified, and put that in schedules which state, “This is what the Bill relates to”, rather than a blanket, “Retained EU law falls unless it is saved”, and there is a risk of inadvertent omission. The Government can then make changes to those regulations depending upon the decisions they make as a result of the review process—whether that is to save it or to let it fall—and have a very clear process for the review.
We have argued that, rather than just having this sunset and it falling away, for example, the Bill should be structured in such a way that makes Parliament your ally. I understand the Government's concern about bureaucratic inertia, particularly in the final years of a Parliament, and the fact that if they do not put the knives into the process, the review process will not get done and the results will not come forward. Make Parliament your ally in that process. Put statutory deadlines for the review process and a reporting process that Parliament can scrutinise into it, rather than this very risky approach.
Lord Powell of Bayswater: I would ask you to speculate for a moment. Picture a group of Ministers, six years after the Brexit referendum and several years after the Brexit legislation, sitting down and saying, “We are still living under great chunks of EU legislation. We really cannot allow that situation to continue until the next election or people will think we are bonkers, so we must find a process to bring this largely to an end in that time.”
First, does that strike you as a credible situation? Secondly, what do you think is the greatest damage it does in terms of traditional parliamentary oversight?
Sir Jonathan Jones KC: I think that would be a more credible point of view if, either in this Bill or elsewhere, you had some sense of what the substance of the law was that Ministers wanted to change; what the actual problem is. We have the example of financial services law which has its separate Bill. If we had examples of the types of changes that the Government wanted to make to whatever it might be, employment law, product safety law, environment law, then we would have something to go on. We could see, now we are out of the EU, these are the areas of law that the Government want to change because they are not working for us or we have some different policy, and you might even understand that they wanted to prioritise some of those and do them quickly. Even then, you would be asking yourself how quickly is quickly, because making good law takes time and ideally you would want some consultation with the affected sectors and so on, but at least you would have something to go on. This Bill does not really give you anything to go on. It is just a blank cheque which says, “Here is this whole body of law.”
I go back to the point I started with, which is that if this were an ordinary Bill, it would be covering multiple purposes. There is a real problem with a Bill with so many purposes and very little—nothing in the Explanatory Notes and so on—which gives you a sense of what the substance is the Government want to change or what the priorities are. This is the problem I have with the mindset that one might understand if only you had some more examples of what the actual substantive policy problem is that this Bill is designed to solve. We do not have that.
Lord Powell of Bayswater: In a way you are saying it is a case of process over substance; the importance of getting the process finished.
Sir Jonathan Jones KC: Or you might say dogma over real policy.
Q4 Lord Powell of Bayswater: Which do you think are the more serious of the potential gaps in parliamentary oversight, or damage to parliamentary oversight, in the Bill? Is it the sunset provision which is probably the most damaging with its tight cut-off period, is it the breadth of the power in Clause 15 or the range of powers to which only the negative procedures apply? All those are damaging in a way, but which would you recognise is the most damaging?
Sir Jonathan Jones KC: Ruth, what is your vote for?
Dr Ruth Fox: The sunset is clearly problematic in that potentially one element, or even all of, retained EU law could fall away if Ministers sit on their hands. We do not know where on that spectrum, from one to everything, Ministers will fall. We can only look at this in the abstract because of the lack of detail. It is difficult to assess what the implications will be. Compare that to the broad powers that will be granted to Ministers’ excessive discretion under Clauses 15 and 16, for example. That will enable Ministers very wide discretion to amend any retained EU law that they have chosen to save, with minimal parliamentary scrutiny. Under Clause 15, there will be the opportunity for sifting, by, presumably, this Committee and the Committee in the House of Commons, as happens with instruments under the European Union (Withdrawal) Act and the European Union (Future Relationship) Act, but that will be the limit of it. It does not apply to all the powers; it only applies to three powers. For example, it does not apply to Clause 16, which is not sunsetted. Which is the most important? Pick your poison. In slightly different ways, they are all very damaging in terms of parliamentary oversight.
Lord Powell of Bayswater: Let me put it in a slightly different way. If you were both members of this Committee, where would you focus? Where would you think was the priority? We cannot tackle it if we cannot—
Sir Jonathan Jones KC: I would focus on the sunset because, for reasons we have touched on, that is the most undermining of scrutiny and actually carries the risk that the laws will change, or fall away altogether, with no scrutiny at all and possibly by mistake. In other words, no consideration even by Ministers. That is the real problem, but of course the Bill as a whole carries a combination of risks and certainly the powers in clauses 15 and 16 are very wide and cover this huge range of policy areas which is what is so unusual about the Bill. I would personally probably start with the sunset.
Q5 Lord Hutton of Furness: In his evidence to the Public Bill Committee, Sir Stephen Laws said that the Bill simply reflected the traditional established methods of scrutinising statutory instruments and that it was up to Parliament to decide how to use these methods to best effect. He did suggest that Parliament needed a “Rigorous triaging system” to identify the most important SIs that might emerge once the Bill becomes law. Do you agree with Sir Stephen’s view that this is just a matter for Parliament to decide how to proceed, or should the Bill itself establish more rigorous procedures for scrutinising the SIs that will come forward in due course?
Dr Ruth Fox: I did not quite understand what he meant by conventional procedures because the conventional procedure would be the negative and the affirmative approach which, clearly, is in the Bill. The Bill does make provision in three aspects for parliamentary scrutiny. One is arguably a backwards step in that, in respect of some of the powers in some clauses, it takes away provisions that are in the EU withdrawal Act for more extensive consultation, for example, 28 days in advance of an instrument being laid and so on. Although it takes away on that side, it does include sifting in respects of three of the powers in the Bill, and it also makes provision for legislative reform orders, which are essentially the super affirmative process. It is the most stringent of the enhanced scrutiny procedures that Parliament has available to it and that is of course drawn from the Legislative and Regulatory Reform Act 2006. The procedures are in there, but, arguably, on too limited a basis. You could make a case for sifting applying much more extensively across more powers than the Government propose, and it is not clear to me why they have chosen those powers and not others.
The prospects of legislative reform orders being used are actually quite small because a legislative reform order process is quite an extensive form of scrutiny; it takes a long time. The Government’s own post-legislative review of legislative reform orders found that it can take between 10 and 14 months for that process to take place, so clearly anything before December of next year, given the likely timing of Royal Assent, is unlikely. If you are going to take a number of these orders through over a 10 to 14-month period, then the Government's own conclusion was you might as well do it in a Bill in terms of the amount of time and effort that it takes. Essentially, if they have a choice between using that LRO procedure or something else, they will likely opt for the other options in terms of scrutiny, so those will be used only on a minimal basis.
In terms of what Parliament's role in this would be, and clearly in terms of sifting, you have to have that in statute, to set out that process so that the instruments can be laid as proposed negatives with the option to upgrade to the affirmative. What you do not want in statute is the mechanism that either House applies to make that sifting process work. You want the sifting procedure in statute, but you do not want to say which committee would undertake the sifting in statute, or anything like that. That is properly a matter for each House to decide, and for it to put in its own Standing Orders. Beyond that, I am afraid I was not entirely clear what he was suggesting, because he was suggesting that there should be triaging and so on, but that is in the Bill.
Lord Hutton of Furness: Are either, or both, of you are aware of the provisions of Section 27 of the Civil Contingencies Act 2004, which introduced the concept of an amendable statutory instrument? Do you think that is something we should consider applying to this Bill?
Sir Jonathan Jones KC: Just to draw a few thoughts together, first of all, to say “it is for Parliament to decide” is rather circular, because Parliament has to decide whether to enact this Bill in this form. If it does, then obviously the levels of scrutiny set out in the Bill will apply.
I keep coming back to my point that it is the combination of problems here, one of which is the timescale. Whatever sifting process or level of scrutiny is to be applied that Parliament decides on, either in the Bill or under procedures adopted pursuant to the Bill, we do not know what volume of statutory instruments we are talking about, and we are potentially talking about a very short period. Whatever Parliament tries to do, once it has passed this Bill, there is a risk that scrutiny will be inadequate. That is the problem.
As to amendability, it is an issue that Dr Fox and I have discussed at great length, and which others who are interested in this niche, but important, area of statutory instruments have thought about. I think there is a case for it, but it carries complications. Introducing it for this Bill might be a bit of sticking plaster and it would still carry with it this problem of timescale, lack of resource and the risk of things being rushed. I suspect that is not a solution.
Lord Rowlands: I wonder if I could pursue a particular example. If this Bill and regulations are brought forward which will seriously affect citizens' rights, there surely has to be a much greater degree of scrutiny. Ministers have repeatedly said—they said it in the Commons recently—that they are not intending to reduce or to dilute working rights legislation in any way. How could that assurance be written in through the process of this Bill? If that assurance is given, how does it happen?
Sir Jonathan Jones KC: You would have to narrow the powers in such a way as to prevent them from being used to do whatever Parliament decides the power should not be used for. The Bill does not really do that at the moment. In Clause 15, the power is limited in certain specific ways—there are certain things you cannot do under that power—but it does not contain the kind of constraints you have described. Limiting powers would involve a fundamental reassessment of what this Bill is for. That might be a very good thing to do, but you can see why Ministers have not done that; it would be a big change.
Lord Rowlands: Would the simplest way be to assimilate it? In other words, the whole working rights legislation should be retained.
Sir Jonathan Jones KC: That is, of course, what was done in the 2018 Act. To come back to this point, if Ministers want to change that, whether to reduce rights or to adjust them in some way, you would expect that to be done under primary legislation so that Parliament can scrutinise it and make a political assessment about whether the Government are departing from assurances they have given before, and so on. You have the normal process of scrutiny that applies to a Bill, but this Bill does not do any of that.
Lord Rowlands: What do you think this assimilated law they are making provision for in the Bill is going to be?
Sir Jonathan Jones KC: The problem is nobody knows. The point I have made before is the problem with reading this Bill at the end of 2023—which is only just about a year away—is nobody can tell what the state of the law will be. Whether it is employment law or anything else, we simply do not know which of this body of law will be saved, which of it will be deliberately dropped, which of it will be amended under the Clause 15 power etc, and which of it might fall away by accident. We simply do not know. That goes for this Committee and other parliamentarians, businesses and users of the law. People are used to the law changing, but normally you have some sense in advance as to how it might change, and businesses and others can plan for that. This Bill does not allow for that.
The Chair: I think we should move on. Lord German.
Q6 Lord German: As both of you have mentioned the sifting process, I can frame this question in a way which takes your argument a little bit further. First, do you think the sifting process will enhance parliamentary scrutiny? Given this Committee is thinking very carefully it may end up as the committee which has to handle all this, do you think it will enhance the ability to scrutinise what the Government are up to and hold them to account?
Secondly, Dr Fox, your Hansard Society has said it will make life more difficult because if the procedure of it operates as it did in the EU withdrawal Act it will be more challenging. Could you tell us what those challenges would be?
Dr Ruth Fox: In terms of the value of sifting, we have always held the position that it is better than nothing, given what we deem to be the inadequacies of the normal delegated legislation process. You will know the benefits better than I do as you are doing the process. In terms of the discussions, we have spoken particularly with Members of the House of Commons and they do not have an equivalent of this Committee for normal business SIs; they only have it in respect of the EU withdrawal Act orders and EU future relationship Act orders.
One benefit is there is a private value, in that communication behind the scenes about technical matters regarding the drafting and so on of the regulations can sometimes be resolved before the formal order is laid. Another benefit is a more public process in that there is a report on the nature of the instrument—why the committee decided it wished to upgrade it to the affirmative procedure—and that can obviously inform the debate that takes place.
Ultimately, you are sifting to the same inadequate procedures. You are upgrading from the negative to the affirmative. The affirmative is essentially a 90-minute debate on a consideration Motion in the House of Commons. What is the penalty for Ministers? It is that the Minister of State has to set aside 90 minutes in their diary to participate in that debate, but even if there are very serious concerns expressed about the instrument, if the Minister and the department are not minded to change it, there is nothing that can be done. In that sense, sifting has its limitations.
Sorry, what was the second element of your question?
Lord German: It was the question of why it would be more challenging as opposed to whether it would enhance.
Dr Ruth Fox: Yes. Essentially, the sifting under the EU withdrawal Act was around technical deficiencies. The scope for what the committee could look at and make its decisions about whether or not to upgrade to the affirmative procedure was limited within the context of technical deficiencies.
What we are talking about here would be sifting of retained EU law regulations that delve into the realm of policy. They would be more politically salient than we have seen through the period since the EU withdrawal Act was passed. The sifting committees—certainly the sifting committee in the Commons—would therefore need a broader remit. Because you look at politically salient matters, this committee's remit would probably be less relevant to you, but in the Commons, they would need to think much more about the nature of the remit of the sifting committee, the resourcing of it, and how they approach it.
In that sense, it moves from the realm of technical detail to policy and politically salient matters. I know sometimes there is a crossover between the two. What is technically and legally difficult sometimes does cross over into the realm of policy and politics, but this will do so more obviously and on a much broader scale. Clearly, if we are delving into matters of labour relations, environment law and citizens’ rights, the backdrop of campaign activity which the committees would likely face around this would be much, much greater.
Lord German: Thank you. I would not want to put words into your mouth, but, basically, the Commons would need to up their game but we would need to extend what we do well already.
Q7 Viscount Hanworth: Clause 16 of the Bill confers a power to “update” secondary retained EU legislation or the successor provisions in the light of technical and scientific developments. According to the Explanatory Notes, the clause “is not intended to make significant policy changes”, but nevertheless, this does strike us as a very open-ended clause. Can you give us an idea of the magnitude of the changes that might be effected under this clause, and is our concern about this matter justified or not?
Dr Ruth Fox: We share that concern. If you look at the wording of Clause 16, it is, “Ministers may make modifications to secondary retained EU law that they consider ‘appropriate to take account of … changes in technology, or … developments in scientific understanding.’” None of that is defined on the face of the Bill. What does “appropriate to take account of mean”? Who decides whether something is a change in technology or a development in scientific understanding? There is no requirement for Ministers to reference the advice of an expert advisory body or any kind of consultation, and so on. We have concerns that that being open-ended, the fact that it is not sunsetted and is not subject to the sifting process could give rise to considerable policy change with limited scrutiny.
How it will be utilised is difficult to say, and we have been thinking about this. If you think about electric scooters, for example, I do not think anybody would doubt that is a technological change, but does the phrase “appropriate to take account of that change in technology” mean that Ministers could therefore not just make changes to retained EU law in respect of electric scooters but also in respect of cars on the road? Because they are taking account of changes in respect of scooters and their implications, but they are going to make changes that they reappropriate in another area. What is the scope and the extent to which that that could be utilised? As it is drafted, in my view, it is not clear in its expression.
Viscount Hanworth: Is it not the case that Clause 15 already confers greater powers, even though they seem to be hemmed around by certain restrictions? What is your opinion about the relationship between Clauses 15 and 16?
Dr Ruth Fox: Yes. It depends upon the status of which type of retained EU law element you are talking about, but, yes, the Clause 15 is essentially a blank cheque to Ministers, even more so than—
Viscount Hanworth: Even though it seems to be putting restrictions here?
Dr Ruth Fox: Yes. Blank cheque, but with the proviso that any change has to be in a deregulatory direction, although it is not clear how that would be assessed. If you had a regulation where the Government wanted to make a change and the nature of that imposed an administrative burden in one respect but downgraded administrative requirements in another, does that mean that a judgment has to be made on the balance of change and whether or not it is deregulatory, or does the very fact that one aspect of the change is not deregulatory mean that this power cannot be used? As the Bill is currently drafted, I am not clear how that would apply.
Viscount Hanworth: And it is all under the discretion of the Minister.
Dr Ruth Fox: Yes.
Earl of Lindsay: In light of Dr Fox’s answer, I wanted to go back to Sir Jonathan’s reply to Lord Hutton about amendable SIs being something of a sticking plaster compared to, say, the full scrutiny which primary legislation requires. Given the uncertainty as to how Clause 16 might be used, and the genuine differences of opinion as to what is appropriate and so forth, would that not be a prudent area for Parliament to have access to amendable SIs, where SIs are flowing from the Clause 16 powers?
Sir Jonathan Jones KC: I do not rule it out. Some of us have discussed this, and we do see that there could be a place for Parliament being able to amend SIs in some circumstances. The truth is that it raises some quite complicated procedural questions. It raises questions about the relationship between the Lords and the Commons; what happens if the Lords amend something and the Commons do not agree with the Lords? At which point do you have an equivalent of ping-pong if you come to amending SIs? In this discussion, we should not oversimplify what could be a very complicated procedural, conceptual measure. I do not rule it out, and I certainly agree with what has been said about the scope of these powers and the difficulty of predicting how they will be used.
My feeling is Ministers have probably not predicted how they might be used and they therefore drafted the Bill in this very wide way so that a Minister can decide at some future point a change is appropriate or that technology has moved on in such a way that they want to change the law. We should be in no doubt about the breadth of these powers or the uncertainty about how they might be used. Whether a power to amend SIs is the answer to that, I am slightly reserving my position.
Lord Rowlands: In a previous committee that I served on, I recall parliamentary counsel of the day coming forward and opposing the case for amendable SIs on the grounds that Parliament has already given Ministers the power to do these things and therefore the only power Parliament should have is to say aye or no. It should not have the right to amend, because that power has already been bestowed upon Ministers by Parliament through primary legislation. I understand that to be the case against amending. How do you respond to that?
Sir Jonathan Jones KC: That is just describing the status quo. Undoubtedly, that is the position historically, subject to the example that is given, but the normal position obviously is that SIs are not amendable and they are therefore effectively “take it or leave it”. I cannot say I am familiar with the Civil Contingencies Act provision, but that is an unusual piece of legislation in various ways. Given the growth in use of secondary legislation in the modern world, whether that is now an adequate answer or whether we ought to be exploring the possibility of moving in some circumstances to some form of amendability, I think that is a very interesting question. Personally, I do not rule it out, but it does raise lots of complicated issues.
Q8 Lord German: I am sure you are very familiar with this Committee's report Government by Diktat and our concern about moving anything that should be primary legislation into the field of secondary legislation and parliamentary oversight. Can I ask you to give your overarching view on this Bill? Is it absolutely flawed, or could it be amended to be sensible? It is a sort of “amend or dump” question, really.
The Chair: Dr Fox, do you want to start? You have come to the wicket first.
Dr Ruth Fox: I have a hospital pass.
It can be amended, and I alluded earlier to how you might do it. If you have this body of retained EU law and you know that is your definitive list, you put that in the schedule of the Bill and say, “Right, that can be saved, amended, or it can fall”. If you put in place a process for how that is going to be done and the parliamentary oversight of that, you can improve it, within the context of the Government's very clear view about the limitations on parliamentary time, why they will not pursue primary legislation and their view that a lot of this regulation came in through the delegated legislation Section 2(2) pipeline under the European Communities Act so there is no reason why it cannot be treated in the same way through the delegated legislation process for its amendment, saving or removal. Those are legitimate concerns, but fundamentally, with this Bill—or indeed any of the other skeleton Bills going through Parliament that you are considering at the moment—you come back to the same problem that whatever you do with them, if you grant broad powers to Ministers, then the parliamentary oversight procedures that we currently have are inadequate for democratic oversight of how they choose to use those powers at some point in the future. Within that context, whatever you do with the Bill is going to be constrained by those procedures.
In terms of trying to get more bite on the exercise of the powers in this Bill, sifting will get you part way there. It will be an improvement on what applies to Section 16, for example. The super-affirmative procedure of the Legislative and Regulatory Reform Act process has a committee veto, which is why Ministers generally do not like it. It is very rarely used because there is the option for a committee to scrutinise it, to propose a veto on the instrument. I think that has been used successfully only once.
Sir Jonathan talked about the discussions we have had around this amendability process. The Hansard Society is conducting a review of delegated legislation at the moment, and the role of amendability, if any, in future delegated legislation process is one of the vexed questions, precisely for the concerns that Sir Jonathan outlined. How do you scope that? How do you manage the parliamentary time implications of it? How do you manage the relationship between the two Houses in terms of ping-pong?
In the context of this being delegated legislation and therefore, in principle, Parliament is delegating the powers, if you do not like the way in which Ministers may use them, if you do not think that the discretion that Ministers want is appropriate, then do not delegate the powers, because the procedures at the end of the process will not give you the oversight that you want. If you think the powers are inappropriate, no procedure is going to somehow make them appropriate. It is the concentration on the breadth of the powers in the Bill that is critical. If they are too broad and afford too much discretion, then tighten them through the wording, or remove them and get the Government to take a different approach.
The Chair: Sir Jonathan, last word to you.
Sir Jonathan Jones KC: I would dump this Bill. I do think it is very badly flawed and, accepting what the policy imperatives are for Government, what they should be doing is bringing forward topic-specific Bills which might include powers within them, but powers constrained by an overarching policy direction and whatever constraints Parliament wants on the use of powers, and then you would have proper scrutiny. If you had to stick with this Bill, then I would say take out the sunset and add some pretty tough obligations to consult.
The other thing we have not really talked about is you have parliamentary scrutiny, but you also have users and sectors who are going to be affected by these potentially huge changes in the law. I would include an obligation to consult those affected.
The Chair: Thank you both very much indeed. You will understand that, as a Committee, we have been concerned at the way this creep has taken place, and while Henry VIII powers have been around for some time, skeleton Bills are a more modern appearance. We are struggling with the triage approach and what else could be done about it.
I think our excellent staff would say that two-thirds of the 700 SIs we look at every year are not controversial, and it may well be that a similar description will apply to a similar proportion in this Bill. But within the Bill, there are clearly going be some framework issues which are going to the heart of our democratic system on which we need to find a way for Parliament—not the House of Lords alone, but the House of Commons as well, so they pick up the challenge—to redress the balance, as we have been asking for in our report.
Thank you very much for your thoughts. If you have any other brilliant thoughts, there is a special prize for the person who thinks of a triage procedure that works. Thank you very much for coming along this afternoon and answering all our questions.
