Legislation: Skeleton Bills and Delegated Powers

Baroness Thomas of Winchester Excerpts

Thursday 6th January 2022 Lords Chamber

[Baroness Thomas of Winchester (LD) [V]]

My Lords, I shall speak in shorthand in this very welcome debate. As a former chair of the Delegated Powers Committee, I am familiar with this battleground, and I have the scars to prove it, particularly from the Public Bodies Bill.

First, as the noble Lord, Lord Bridges, said, the practice of bringing framework Bills to Parliament must be discouraged from the outset, however tempted Governments are to use them. Secondly, the House must have agreed procedures to swing into action if there are inappropriate delegations. I endorse the “scrutiny reserve” plan in Democracy Denied?, but we must beware: no Government will agree to this willingly if it means that legislation will be held up. So we must watch out for that.

Before closing, I want to say that I hope that the House will never give up its priceless unfettered power over secondary legislation, even if it is hardly ever used.

Manifesto Commitments

Baroness Thomas of Winchester Excerpts

Tuesday 16th June 2020 Lords Chamber

[Lord True]

My Lords, I regret that the timetable of some government action has obviously been interfered with by the Covid emergency, but I think all noble Lords will agree that there is a vital social need to ensure that all sectors of society are protected during the Covid crisis. I repeat what my right honourable friend the Prime Minister said recently: the Government currently intend to proceed with all their manifesto commitments.

[Baroness Thomas of Winchester (LD) [V]]

My Lords, in April the Government said that in the light of the pandemic they were reviewing the development of the manifesto commitment to establish a national strategy for disabled people. Disabled people badly need some good news. Can the Minister give us some about the strategy?

[Lord True]

My Lords, I can add little to the previous answers I gave to the noble Baroness, Lady Uddin, and my noble friend Lady Eaton. Of course, the Government attach the highest importance to tackling diversity and disadvantage of all sorts, and that remains our objective.

Social Security (Personal Independence Payment) (Amendment) Regulations 2017

Baroness Thomas of Winchester Excerpts

Monday 27th March 2017 Lords Chamber

[Baroness Thomas of Winchester (LD)]

My Lords, Winchester is well represented this evening. PIP’s broad design flows from the Welfare Reform Act 2012. From the beginning it was intended not just to reset the DLA thresholds to determine who gets what but to decrease the overall expenditure on benefits by attempting to target them more effectively than DLA, and specifically to give more weight to mental health problems.

The department said that of those with mental health conditions receiving the mobility component of DLA, only 9% had been entitled to the higher rate, whereas 27% of PIP claimants receive the enhanced mobility rate—or 28%, according to the Minister’s letter this morning. The Government’s own consultee, the SSAC, asked the pertinent question: so what impairments do these 27% have? Are they a combination of physical and mental impairments? The department evaded the question, saying that perhaps 27% was “somewhat imprecise”. We do not know what is going to happen to claimants who may be reassessed quite soon, but we do know that the new regulations undermine the welcome support PIP can give to those with mental health problems, and I urge the Government to withdraw them for further consideration.

That is not the only reason I think the regulations should not be proceeded with. I hope other Members of the House will be as uneasy as I am at the Government immediately reaching for the statute book in order to negate a very careful decision of the Upper Tribunal. Ministers say they are restoring the original intention of the relevant descriptor regarding planning and following a journey, and insist that the legislation is clear, but they gloss over the fact that the Secretary of State said in the case of HL in December 2015 that,

“overwhelming psychological distress could depending on its nature, frequency, duration and severity make a person unable to navigate and so to fulfil the terms of descriptors 1d and 1f”.

Descriptor 1f gives the higher rate. We are now told that the Secretary of State made a mistake and had to explain to the court that a concession had erroneously been made. This is all very unsatisfactory and leaves a particularly bad taste in the mouth. Whose hand is round the Secretary of State’s throat? What he said sounds to me to be exactly what the original policy intention was. Why do the Government not come clean and say that they are changing the policy for enhanced rate mobility by not allowing psychological distress to be taken into consideration?

Why the indecent haste in changing the law? As the Secretary of State is appealing the Upper Tribunal’s decision, he could have used other powers he has to prevent the decision of the Upper Tribunal having immediate legal effect by giving directions to decision-makers and courts about how the descriptors should be interpreted. Why not wait for that outcome? The timescale is curious. If he was going to wait three months from the judgment, why not use that time to consult properly? The impact assessment estimates that 71,500 claimants in the current caseload will go from standard rate PIP to nil, the same number from enhanced rate to nil and 21,000 from enhanced rate to standard, so 143,000 claimants with an enduring health condition are estimated to lose the benefit altogether. The disorders likely to be affected, according to the DWP, range from schizophrenia and autism to bipolar affective disorder and cognitive disorder. So much for parity of esteem between physical and mental health.

There is another aspect which must be considered. The Secretary of State is keen to say that no one already getting an award under the old regulations will lose it, presumably meaning that no one will have the money clawed back, but some awards are only for a year before another assessment is demanded. Thousands of claimants are in this position. The new assessment will presumably be under the new rules, meaning that many existing beneficiaries of standard or enhanced rate mobility will lose all entitlement.

I accept that the reason the Secretary of State is making this change is not to make even more savings than have already been announced, but is it fair to tear up the carefully constructed mobility descriptors and the Upper Tribunal’s carefully explained judgment with such haste and without proper consultation? Is it not yet another tightening of the screw around the whole independent living project, which is assailed on every side? These regulations should be set aside to await proper consultation.

I shall end with a word about voting on SIs. I am particularly addressing my friends and colleagues on the Labour Benches. I shall quote from the 2005 Cunningham report Conventions of the UK Parliament, which the noble Baroness, Lady Sherlock, dismissed:

“The Government appear to consider that any defeat of an SI by the Lords is a breach of convention. We disagree. It is not incompatible with the role of a revising chamber to reject an SI, since (a) the Lords (rightly or wrongly) cannot exercise its revising role by amending the SI or in any other way, (b) the Government can bring the SI forward again immediately, with or without substantive amendment”.


We should have the courage of our convictions and vote to annul these regulations.

[Lord Low of Dalston]

My Lords, I declare my interest as a recipient of disability living allowance, the precursor to the personal independence payment. I therefore have an interest in this type of benefit. Two simple and basic points make the case against these regulations, open and shut.

First, this is a clear breach of faith with the disability community. Back in 2012, when PIP was first introduced, Mind and other mental health charities raised concerns that people with mental health problems would be able to score points only under the criterion which used the words “psychological distress”. The Government gave reassurances that that was not the case and that people with mental health problems could potentially score points under a range of criteria if their condition meant that they struggled to plan and follow a journey. On this basis, PIP was welcomed by the mental health and wider disabilities sector, because for the first time people with mental health problems felt they would be given access to disability support equal to that of people with physical disabilities.

The Government made clear commitments that people who experienced psychological distress would be eligible under the very criterion that is now being changed. These commitments were underlined in statements by Ministers in debates on the Welfare Reform Bill at the time—the noble Baroness, Lady Bakewell, has quoted the statements by Maria Miller and Esther McVey, so I do not need to repeat them. However, in practice, the DWP has not deemed people who experience psychological distress eligible for the full range of points, regardless of how severely that distress affects them. This has meant that 164,000 people have received a lower rate than they were entitled to.

This is the origin of the two cases which came before the Upper Tribunal at the end of 2016. The tribunal’s rulings did not extend the scope of PIP, as the Government suggest, but clarified it. That is what tribunals do: they do not make the law; they clarify what the law is. It is the Government who are now seeking to restrict the scope of PIP from what it has always been understood to be by removing psychological distress from criterion 1f as a reason for not being able to follow a familiar route without assistance, so that a claimant can only be awarded four points under mobility descriptor 1b. The regulations are in clear breach, if not of a manifesto commitment on this occasion, then certainly of pledges given to those with mental health problems in 2012. This change to the eligibility criteria also flies in the face of the statement in the Work, Health and Disability: Improving Lives Green Paper that the Government will not seek to make any further cuts to disability benefits following the already controversial cuts for those receiving employment support allowance in the WRAG, for new claimants from 1 April this year.

My second point can be made even more briefly: the proposed changes would create a legal distinction between those with mental health problems and those with other kinds of impairment when it comes to benefit assessments, a distinction which flies in the face of the Government’s commitment to parity of treatment for people with mental health conditions. The Government have said that a person with a cognitive impairment alone will still be eligible for the highest mobility rate, but the term “cognitive impairment” far from covers the full range of people with mental health problems.

I believe these regulations are trying to move the goalposts by excluding people who experience psychological distress from eligibility for the higher number of points necessary for the higher rate of mobility component. In doing so, they effectively discriminate against people with mental health problems. This is clearly against the original intention of PIP and runs counter to the commitment the Government made to people with mental health problems—that they would be assessed in the same way as other disabled people. I support the Motions before us this evening to oppose these regulations and if the noble Baroness, Lady Bakewell, moves for a vote, I will support hers.

Higher Education and Research Bill

Baroness Thomas of Winchester Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 13th March 2017 Lords Chamber

[Lord Hussain (LD)]

My Lords, I also support the amendment. In doing so, I declare an interest as vice-chairman of the recently set up APPG on Islamic Finance. As we all know from the 2011 census, it is recognised that more than 2 million Muslims live in this country and many of them would like sharia-compliant finances. Many of us must make compromises when such finances are not available and take interest-based finances. Particularly with student finances, where a scheme has in many ways already been agreed to go ahead, it is beyond my understanding why it has taken so long for the Government to complete the legislative process for it to be introduced.

The case for the amendment was made very well by my noble friend Lord Sharkey, the noble Lord, Lord Sheikh, and the noble Baroness, Lady Cohen. I add only that when this sharia-supported Takaful scheme is introduced we need to make sure that it is available easily and to all Muslim and non-Muslim students who want to benefit from it. I am mindful of one other thing and ask the Government to bear it in mind: that the scheme does not become more expensive to students in any way. I have seen in some countries zero-interest-based finances which, in the small print, have built in various administration and handling charges and fees. At the end of the day, they become more or just as expensive as the interest-based schemes. I hope that the Government will at least make sure that this scheme does not become more expensive to students. With that, I urge the Government to complete the legislative process as quickly as possible to make the scheme available to students by the beginning of the next academic year, in 2018.

[Baroness Thomas of Winchester (LD)]

My Lords, I was speaking to a Muslim friend this morning who has six young children. She and her husband take education extremely seriously; the children go to extra tuition. Families such as that will find it very difficult if a scheme is not put in place soon as far as choices are concerned for the children’s education. She was very excited to see such an amendment on the Marshalled List today. I hope it will be supported this afternoon.

[Lord Newby (LD)]

My Lords, briefly, I support this amendment. I declare my interest as a vice-chair of the All-Party Parliamentary Group on Islamic Finance. I want simply to ask the Minister to reflect on what his colleague, the noble Baroness, Lady Goldie, said in Committee as to why the Government could not give a timescale for this. She said:

“This careful, sensitive and important work cannot be rushed towards a deadline that is simply chosen and written into legislation. Our timeframes must be grounded in the realities of the work necessary to deliver a workable system”.—[Official Report, 25/1/17; col. 171.]


What are these realities which mean that not only is there inordinate delay but we do not even know how long the delay is likely to be? As we have heard, this is a relatively modest proposal. There is a lot of expertise which would enable it to take place. Can the Minister assure us that the real reason for the delay is not simply that there is such a shortage of staff in the relevant departments and so many other priorities, not least with Brexit, that the Government are not prepared to put Civil Service resources into getting this scheme off the ground?

If you were in a Muslim community it would be very easy to believe that the Government were not taking their commitments seriously in this respect because there is so little action to show. If the Minister is not prepared today to give a firm date for when the Government expect the scheme to be introduced, will he at least give his support to my noble friend Lord Sharkey’s amendment, which would bring some degree of limited certainty into the process?

Parking Places (Variation of Charges) Bill

Baroness Thomas of Winchester Excerpts

2nd reading (Hansard) : House of Lords
Friday 24th February 2017 Lords Chamber

[Baroness Thomas of Winchester (LD)]

I am very grateful to the noble Baroness, Lady Redfern, for giving me the chance to speak very briefly at this point. What I have to say is not really relevant to the Bill but it is relevant to the subject of the Bill because it is about car parking in towns and cities, specifically in private car parks. Although all car parks are useful to disabled people, the different rules that apply in private car parks can catch people out—when blue badges are not recognised, for example. Often, private car parks are close to DWP assessment centres, so it is quite a live issue. There can also be a problem when there are no ticket machines and payment has to be made by card. Quite often this arrangement does not work, for one reason or another. A person may try to give a credit card number and when it is rejected they face a penalty. One of my correspondents had this problem when he was delivering a disabled person to such an assessment centre. Or it may be that a disabled person is being helped out of a car, very helpfully and safely, and the time limit is overrun by a few minutes and a penalty charge is incurred. I ask the Minister whether there is any meaningful oversight of the running of private car parks to make quite sure that they are operating fairly, both for disabled people and other motorists. As far as the Bill is concerned, we Liberal Democrats give it a warm welcome.

Policing and Crime Bill

Baroness Thomas of Winchester Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 7th December 2016 Lords Chamber

In conclusion, the Select Committee’s report, from which this excellent amendment stems, sent an undeniably powerful message to disabled people that the anticipatory nature of the duty to make reasonable adjustments is not up for renegotiation. Disabled people should not have to demand access. Parliament needs to convey that same simple message tonight. Accepting this amendment would enable the Government to prove to disabled people that they mean what they say when they commit to building a country that works for everyone. I hope they will seize this opportunity to honour that pledge.

[Baroness Thomas of Winchester (LD)]

My Lords, it is a pleasure to follow the powerful speech of the noble Lord, Lord Shinkwin. As the noble Baroness, Lady Deech, has said, this amendment is more focused than the one we tabled in Committee, but it is essentially about the same issue: giving the licensing authority a few more teeth by way of the licensing objectives to ensure that disabled people can access as many licensed premises as possible.

We are not being unreasonable. The key phrase for what a licensee should do to allow disabled people to access their premises is still only to make a “reasonable adjustment”. A licensed premises which, for example, is entirely upstairs with no lift available would still not be caught by this addition to the objectives. I dare say the Reform Club would not be either, because it is up a flight of stairs, as many of us who cannot access that premises know.

Crucially, the amendment would transfer the onus to the licensing authority from disabled people themselves. If a disabled person cannot get into a pub, club, or restaurant, or any other licensed premises, why should they have to take action themselves which might mean taking the licence holder to court? Our lives are hard enough now without having to enforce the law too. This is a golden opportunity to do what many organisations think should have happened years ago—to have licensing officers who are able to take action beyond writing a licensee a letter or having a word in their ear.

Does this mean extra work for the licensing authority? No, because we are told that it visits licensed premises all the time. Are we putting an unfair burden on licensees? No, because we are talking about only a reasonable adjustment, not an unreasonable one. The whole point is to take the burden off the shoulders of the disabled person who, under present circumstances, is made to feel guilty for making a fuss, or even for not being able to join a group of friends for a drink or a meal. It happens all the time.

I believe the tide will turn one day when there are even more disabled people out and about than there are now. This is a perfect opportunity to act now.

[Baroness Hamwee (LD)]

We support the amendment from these Benches. I congratulate those who tabled it on their persistence and on taking forward the work of a Select Committee to seek to translate it into legislation. That is an example of how this House can work so effectively.

As others have said on many occasions, we should not have to legislate, but it seems that we do in order to change attitudes. Sometimes we have to make something enforceable before people come to understand that the subject is actually a right. The amendment has been described as anticipatory. Unfortunately one often sees that it is too easy for someone who infringes a rule not to take the sanction seriously. It can be regarded as an operating cost. If you are caught out and have to pay a penalty it is tough, but it is part of the costs of the business.

The value of the amendment is that bringing the issue into the licensing process will concentrate minds at the right point. I slightly take issue with my noble friend Lady Thomas, who talked about teeth. I say that it is about a mindset—so minds rather than teeth —but I think that is the only difference between us.

As the noble Baroness, Lady Deech, said, it is about mainstreaming the issue, making sure that everyone approaches it with the right objectives in mind. It is very harsh—almost offensive—to expect the objectives of the amendment to be met by individuals who find themselves unable to get into a set of premises, to use that as the example, not having known beforehand that there would be a problem, and to put the burden on them, in retrospect, to take it up—and we know that these rights are difficult to enforce, because individual rights are not easily enforced.

The Minister said in Committee that it would be inappropriate for licensing conditions to refer to specific legislation, because there is already an obligation to comply with that legislation. The new formulation is very neat. The current objective is shorthand, in just the same way as the other four licensing objectives are shorthand—one of them is for protection of children, safety is another. Indeed, the Minister gave examples of that in Committee. There would not be a call for the amendment if guidance worked and if good practice, which is no doubt observed by the good practitioners, was observed by those who have made the amendment necessary. We are very enthusiastic in support of the amendment, although it is sad to have to be enthusiastic for it.

Policing and Crime Bill

Baroness Thomas of Winchester Excerpts

Committee: 4th sitting (Hansard - part two): House of Lords
Wednesday 9th November 2016 Lords Chamber

[Baroness Deech (CB)]

Amendment 210 is in my name and the names of the noble Baronesses, Lady Thomas, Lady Pitkeathley and Lady Campbell—all former members of the Lords Select Committee on equality and disability, which reported in March this year. The report found many areas of transport, employment, education, communication and law enforcement failing in their impact on disabled people. We made recommendations that were carefully crafted to be cost neutral, or very inexpensive, and that would ensure a fair deal for the growing number of disabled people. Very few of our recommendations involved changing the law, but this is one of them. It is a simple, economic and transformative amendment, central to our recommendations, which would go a long way to adjusting our living environment to the needs of disabled and elderly people.

Licensing authorities have a duty, under Section 4 of the Licensing Act 2003, to promote, in their duties of inspection and licensing,

“the prevention of crime and disorder … public safety … the prevention of public nuisance; and … the protection of children from harm”.

Amendment 210 would add a fifth enforceable duty, namely compliance with the Equality Act. In taking evidence from disabled people and those involved with them, the Select Committee uncovered a weakness in enforcing existing duties, and at the same time found a way to improve life for disabled people and all of us as we get older. In their response to our report, the Government said that since the Equality Act already applied to businesses and employers, no more was needed, and that they were holding discussions with the hospitality industry to promote increased accessibility for disabled people. It is true that equality law applies across the board, but the issue is enforcement where equality is being denied. Sadly, it is clear that mere guidance and good will do not do the trick.

With this amendment, licensing authorities could require, for example, old and existing buildings to be made accessible. When they are out inspecting and find disabled facilities not being provided as they should be, they could review the licence. They could issue a warning or, in the last resort, remove a licence from an entertainment premises that refused customers because of their disability—or indeed sexuality or race—or charged extra to disabled visitors. At the moment, the licensing authority can only remind owners of premises of their duties under the Equality Act, and they have no teeth. Where the situation is not remedied, this amendment would shift the enforcement burden away from the individual disabled person or the person discriminated against—who, under existing law, have to take legal action on their own—to the local authority. It is self-financing. The functioning of this amendment would not depend on taxpayers’ money.

This extra condition in the Licensing Act would give local authorities in every sphere the power to say, “We are not going to licence you unless we see the premises are fit, or as fit as they can be, for disabled persons’ use”. The Select Committee learned that the National Association of Licensing and Enforcement officers would support this. Businesses that already comply would have nothing to fear from it. Indeed, some already behave as we would all wish. For example, Newham Council denied planning permission unless all new stations in Newham were step-free. By way of contrast, the committee heard evidence that new shared spaces and pedestrianised shopping areas were designed sometimes without regard to accessibility by disabled people. It is no answer to say, as Ministers tend to, that guidance to the authorities is all that is required. Guidance is no substitute for enforceability.

The United Nations Committee on the Rights of Persons with Disabilities carried out an inquiry into the condition of the UK’s disability programmes and reported on 6 October. The United Nations committee condemned the lack of cumulative assessments of the impact of cuts and other recent policies affecting disabled persons. It called on the UK to ensure that in the implementation of legislation, policies and programmes, special attention is paid to the most vulnerable disabled people and it requires the UK to report back on the steps taken to comply with the United Nations Convention on the Rights of Persons with Disabilities. That report is not out of date, it is bang up to date. Amendment 210 would not only go a long way to achieving the aims of the Lords Select Committee but would assist the Government in making a decent response to the United Nations committee and avoiding international opprobrium. I beg to move.

[Baroness Thomas of Winchester (LD)]

My Lords, my name is also on Amendment 210 which, as the noble Baroness, Lady Deech, has said, is one of the recommendations of our committee. I am particularly speaking about how the amendment would apply to existing, rather than new, premises. Before I go any further, I should say something about the Select Committee on the Licensing Act. I do understand what is being said but my mind goes back to the words of a pop song of the 1960s:

“Catch a falling star and put it in your pocket

Save it for a rainy day”.

This might be, “Catch a passing Bill and put it in your pocket”. That is an important point: maybe some Members do not quite appreciate how difficult it is to get Bills into the legislative programme.

The vague terms used by the then Secretary of State for Education and Minister for Women and Equalities in her evidence to the committee about spreading good practice rather than legislating in this area simply will not do, as it does not work. The licensing solicitor at Sheffield Council, Marie-Claire Frankie, was clear when she gave evidence to our committee:

“What could strengthen the licensing authority and give them the ability to enforce it is to make a fifth objective related to equality”.

She said specifically that a friendly word in somebody’s ear at the premises, even if followed up by a letter from the local authority, just did not work. She went on:

“For old and existing premises that transferred over before the Licensing Act, there is not anything that we can go back and revoke licences on or anything that we can add conditions on. Because of the licensing objectives, there is no way of getting it before a committee because they are not breaching crime and disorder; they are not committing public nuisance; they are not publicly unsafe; and they are not endangering children. If there was an additional objective relating to equality, there would be a mechanism to get it before a committee, to enable the local authority and the licensing authority to do something”.

We are talking only about reasonable adjustments, not a mandatory lift, say, if a small club, restaurant, pub or other entertainment venue is entirely upstairs. No one wants premises closed down, but what those of us who are disabled want is as much accessibility as possible, and we do not want to have to go to court to get such access. I hope the Government will accept the amendment.

[Baroness Campbell of Surbiton (CB)]

My Lords, I am also very pleased to add my name to Amendment 210 in the name of my noble friend Lady Deech, who I must say not only ably chaired the Select Committee on how disabled people are faring under the Equality Act but has become a passionate leader for access.

There is a recurring theme in responses to calls for statutory enforcement of disabled people’s access rights, which is that guidance and awareness is much better. This is clearly exemplified in the recent rejection of my amendment to the Bus Services Bill and the lacklustre response to the Select Committee’s report on how disabled people are doing under the Equality Act, as my noble friend Lady Deech has powerfully said. If guidance works so well, why, 21 years after the passing of disability discrimination legislation, are disabled people still denied access to so many pubs, clubs, restaurants and entertainment venues because they are inaccessible? Is it because we cannot enjoy ourselves? I do not think so. I believe there are two major reasons.

First, many service providers who operate from licensed premises are either unaware of their duties under the Equality Act or think they can ignore them with impunity—from the local publican to the London club owner. To most, it is a remote piece of legislation, and only a few understand its relevance. It does not touch the general day-to-day running of the business, so little thought is given to disabled people’s access needs unless these are brought to their attention, usually by a very frustrated and angry disabled person who cannot get in. However, if their licence to trade from those premises was in jeopardy of being withdrawn on the grounds of inaccessibility, the importance of the duty would be so much clearer and change would happen.

Secondly, disabled people, as has been said already, have borne the sole burden of enforcing their rights to social inclusion for years. These are the people least likely to have the resources to challenge a barrier-ridden society, especially when access to justice has become so difficult. So, venues and facilities are likely to remain inaccessible. Our Select Committee received a lot of evidence from witnesses illustrating this. In fact, while waiting to speak today I have received 21 tweets from disabled people telling me of pubs, restaurants and facilities in their area that they cannot get into— 21 tweets in just over an hour.

The Government need to back a more proactive enforcement stance. Compliance with the Equality Act should be added to the objectives of the Licensing Act to ensure that it is followed. When the Select Committee visited a local centre for independent living in Tower Hamlets, I was struck by the similarities of people’s experiences and frustrations with my own 25 years ago, when I was actively campaigning for the Disability Discrimination Act. They told me about the general reluctance to make reasonable adjustments, and the excuses are the same now as they were then: “no money”, “burden on business”, “more advice and guidance needed”. You name it, disabled people have heard it, year on year. Two weeks ago I was having a similar exchange with the Minister, the noble Lord, Lord Ahmad, over my amendment to require accessibility policies as a condition of granting a bus operator’s licence. Today is Groundhog Day, this time over empowering local authorities to withdraw a licence to trade or impose conditions if the Equality Act is ignored. This would not add duties—they are already in place—but it would help to enforce them. What is offered? More guidance. The status quo prevails.

No wonder disabled people are worn down and cynical. No wonder the UN Committee on the Rights of Persons with Disabilities believes the Government are failing in their duty to progress disability equality. This is not my idea of “a society that works for everyone”. I really hope the Government will break the mould today and seriously consider Amendment 210.

Government’s New Approach to Consultation: “Work in Progress” (SLSC Report)

Baroness Thomas of Winchester Excerpts

Monday 11th March 2013 Grand Committee

[Baroness Thomas of Winchester]

My Lords, I, too, applaud the committee’s report and strongly endorse its recommendations. I will just say a very quick word about why consultation is so important, particularly for disabled people. I absolutely accept that there are many sorts of disability, but let us take the disability of somebody such as me, with mobility problems. No one except a disabled person, or their carer or helper, can know what it is like to be disabled. That is why consultation, for this group of people, is so important. People have their eyes opened when they either go round with a disabled person or when they put themselves in a wheelchair. I know a lot of MPs have done just that to see what conditions are like in their constituencies. I note that many of the responses that the committee has highlighted are from charities with a lot of disabled people in them. I will not speak about the PIP regulations again but they are an absolutely classic example of why consultation is so important.

The other thing I will highlight is that a single website for publicising government consultations would be invaluable. At the moment they are all over the place and it is quite a scandal that the Government are expecting some organisations to respond in a very short timeframe. After all, the people in these organisations are usually paid very small amounts, because the organisations are funded by voluntary donations, with no state support. To make these people look all over the place for consultations from the Government is ridiculous. I thoroughly endorse the robust language of the report and hope that the Government are listening.

Strengthened Statutory Procedures for the Scrutiny of Delegated Legislation: DPRRC Report

Baroness Thomas of Winchester Excerpts

Tuesday 5th March 2013 Lords Chamber

Moved by

[Baroness Thomas of Winchester]

That this House takes note of the Report of the Delegated Powers and Regulatory Reform Committee on Strengthened Statutory Procedures for the Scrutiny of Delegated Legislation (3rd Report, HL Paper 19).

[Baroness Thomas of Winchester]

My Lords, first, I want to put on the record my thanks for and admiration of the work of the Delegated Powers and Regulatory Reform Committee secretariat in carrying out the research which enabled my committee to produce the report that we are about to debate. I thank in particular Kate Lawrence, our clerk until the end of last year who is now on a two-year sabbatical, and Peter Milledge, our invaluable counsel. I hope that the House will be as impressed as I am by the magnificent Table 1 on page 8 which sets out clearly the variations in strengthened scrutiny procedures that are at the heart of our report. I shall come back to those variations in a moment.

As a committee, we have been increasingly concerned in the past few years at the proliferation of procedures in legislation designed to give Parliament more control over delegated powers. This may sound counterintuitive: surely it is nothing but a good thing for Parliament to have an increased role in scrutinising all powers proposed by the Executive, particularly in the field of secondary legislation, which has always been the Cinderella in the legislative landscape, if I may mix my metaphors a bit. We agreed that enhanced and rigorous scrutiny is a good thing but needed to say to the Government, “Please don’t invent yet another variation on a strengthened statutory procedure without examining existing procedures first, otherwise the complexity you are in danger of creating may lead to confusion and muddle rather than enhanced scrutiny”. We even suggested that the House might consider the case for rationalisation of all these variations by legislation.

Then there is consistency of language. In seven of the scrutiny procedures, the Government have a legal duty to “take account of”, “have regard to” and “consider” a relevant committee’s recommendations. We wondered whether there are subtle differences in these expressions.

Before going any further, perhaps I should put our report in context by quickly sketching out how our committee came into existence, what has led to these new procedures and what they are. The Delegated Powers Committee was set up only in 1992—very recently by House of Lords standards—because of real disquiet over the way successive Governments were increasingly using order-making powers in Bills, some of which were little more than skeletal. This practice enabled Ministers to be vague about the all-important detail and future secondary legislation as the Bill made its way through Parliament. In justifying this lack of detail, Ministers could always cite flexibility for changing circumstances and, of course, precedent, but the House made it clear that leaving so much important detail to unamendable instruments was no longer acceptable. In many cases the detailed policy had simply not been worked out. The upshot was the Jellicoe report, which recommended the setting up of the Delegated Powers Committee to examine whether the delegation of legislative power in new Bills was appropriate. Eleven years later, the Merits of Statutory Instruments Committee was also set up to look at existing statutory instruments. Both committees have different names now to reflect their additional duties. They have certainly given a higher profile to delegated legislation and have, I believe, over the course of their existence, proved their worth. Governments have always taken the DPRR Committee’s reports seriously, very often acquiescing in its recommendations as Bills go through the House.

It may be worth noting that the other place does not have committees carrying out the same function; indeed, my committee is often asked to comment on draft Bills before a Joint Committee of both Houses. However, the other place does set up a scrutiny committee, under the super-affirmative procedure, if necessary, which issues a report, as does my committee. This might therefore be the right place to question whether having this duplication really makes sense. I gather it is fiendishly difficult to set up Joint Committees for both Houses but should this process not be made easier, and certainly speedier for this purpose, if not for any other?

Our report starts by setting out the different types of statutory instrument before concentrating on those orders which attract some kind of enhanced scrutiny procedure. These orders are all Henry VIII powers, which enable Ministers to amend Acts of Parliament by secondary legislation. Who would have thought that Henry VIII’s name would still be immortalised in quite this way? My late colleague Lord Russell said that the very first time King Henry used this power was to vary the price of wine. Although many Henry VIII powers are limited, there are many others which are much more significant. Nearly all Henry VIII powers are exercised by ordinary, familiar affirmative instruments, which have to come before the House before they can be made. However, there are now order-making powers in certain Bills which are subject to the super-affirmative or enhanced affirmative procedure, by which these orders receive much more detailed scrutiny, with many variations, than an ordinary affirmative order. Our report details all the order-making powers in Acts which attract a strengthened scrutiny procedure, and exactly what that procedure is in each case. Perhaps the best example is the Legislative and Regulatory Reform Act 2006, once dubbed the “Abolition of Parliament Bill”, because of the scope and significance of its delegated powers. This Act ticks all the requirement boxes in Table 1. All this may seem quite an undertaking but these safeguards were the price that the then Government had to pay for enabling a Minister to reduce or remove a burden imposed by primary legislation.

At the beginning of my remarks, I said that our report asked the Government not to invent a new variation on a strengthened statutory procedure without examining existing procedures first. The second major point we needed to make to the Government was, “Please make it clear whether legislative reform orders are to be used even if the proposed changes are highly controversial and if proceeding with them is not recommended by the relevant scrutiny committee in one or both Houses”. Just to be clear, the previous Government said that they would not proceed with proposed changes under these circumstances.

Since our report was published, the Government have responded to several of our questions but only to one of those two main points. We now know which committees are to scrutinise which orders. We also know that the Government will use the existing model, if possible, when proposing a strengthened scrutiny procedure in future; if not, they will explain the reasons for inventing a new procedure. They have also undertaken to lay supporting documents setting out the detail of and rationale for any proposed order under Section 19 of the Localism Act 2011.

Several of our concerns have been addressed but we still do not know whether LROs will be used for highly controversial changes and whether the Government will respect the relevant scrutiny committee’s power of veto. Before further legislation is drawn up, it is vital that the House knows the answer to those two crucial matters. For example, we know that the Government are contemplating a deregulatory Bill in which it is quite possible that new rules will be introduced to change the super- or enhanced affirmative procedure by cutting down or cutting out consultation.

The right honourable Oliver Letwin made it clear in his evidence to the Secondary Legislation Scrutiny Committee that some legislative requirements might change so as to,

“reflect the principle of proportionality”.

I am probably not the only person to worry about that word “proportionality”. Governments skip a proper consultative process at their peril. A good example is the lack of consultation on a crucial part of the recent Social Security (Personal Independence Payment) Regulations, which were changed by the DWP at the last minute. To say that the change put the cat among the pigeons is putting it mildly, and at least the Minister apologised for inadequate consultation on that occasion.

At the end of our report is a paragraph headed “New opportunities”, which I shall now turn to. The question arises that if a strengthened procedure is considered proper for some Henry VIII powers in certain Acts, why do we put up with such a comparatively crude way of considering some very important affirmative instruments that are not Henry VIII orders? What I mean by this is the “take it or leave it” procedure that the House has for considering affirmative instruments. They can either be agreed to or disagreed to, full stop. Non-fatal amendments or regret Motions to the approval Motion, whether agreed to or not, are in effect neither here nor there.

Our report is concerned with delegated legislation that is subject to enhanced procedure by statute, but it is high time that the Procedure Committee turned its mind to considering a non-statutory procedure for consideration of certain important instruments. This might attract, say, two bites of the cherry, by which I mean that noble Lords could be given a chance to have a preliminary debate before the instrument is taken through the House. The Government could be encouraged to table a proposal for an instrument which might then attract one or more suggested amendments on which votes could take place. Even if the Government decided to take no notice of any successful suggested amendments when the instrument was going through the House, at least there would have been the possibility of change, because any amendments would have been suggested before it was too late.

A recent candidate for such a procedure would have been the draft PIP regulations that I just mentioned. We know that the Government were running seriously out of time for them, and I well understand that DWP orders may have that problem, but it might have been a better instrument if the House had been able to have two bites of that particular cherry. In the event, the Government have published amending regulations to take account of the many representations made.

This begs the question of whether the House really has the scrutiny of ordinary affirmative SIs right. All my committee and the Secondary Legislation Committee can do is to recommend and warn. It is up to the House what then happens. Should the House be more robust in voting down instruments? In spite of the recommendation of the committee of the noble Lord, Lord Goodlad, on the House’s working practices, I am not particularly attracted to that course of action because I think it is a bit unrealistic and confrontational. The noble Lord, Lord Filkin, may disagree with me when we hear what he has to say later on; I am very pleased he is to speak. I would prefer the House to allow a genuine draft of the instrument to be debated and voted on, with suggested amendments before the instrument was agreed to.

I am very aware that many Peers believe that there should be a way of amending statutory instruments, but the whole point of delegated legislation is that it is just that: it delegates a power to a Minister to bring in some policy the House has agreed to in principle, and the whole point of my committee is to see that that delegation is not inappropriate. However, there is no reason why the House should not devise some way of improving the scrutiny of important statutory instruments without upsetting the whole legislative apple cart. I very much look forward to the rest of the debate. I beg to move.

--- Later in debate ---

[Baroness Thomas of Winchester]

My Lords, I thank all noble Lords who spoke tonight in this most fascinating debate. I am very grateful for the kind but quite unmerited remarks about me. I should put on record our great thanks to Allan Roberts, who was our principal counsel for many years. He did not have a hand in this report, but I am very pleased that he was mentioned, because his contribution to the work of the committee has been outstanding.

I will not make another speech, because the hour is late. It is extremely tempting to do so, because there are so many matters that I would like to take up. I loved the trip down memory lane taken by the noble Baroness, Lady Gardner, and I was very pleased that the noble Lord, Lord Filkin, was so trenchant in his remarks. My suggestion would not mean that the Government would not face the prospect of the House voting against such an instrument; it would simply mean that they would have early warning of it so that they had the possibility to make changes. However, I will not say any more at this point except to thank everyone for taking part.

Motion agreed.