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

Baroness Gardner of Parkes Excerpts

Tuesday 5th March 2013 Lords Chamber

[Baroness Gardner of Parkes]

I have been on the Delegated Powers and Regulatory Reform Committee for quite a number of years and I have served under a number of different chairman. We are very fortunate now in having the noble Baroness, Lady Thomas, and I congratulate her on securing this debate today. Tribute was paid to the various supporters and advisers we have had. In particular, Peter Milledge, who is now in charge of providing our legal advice, was mentioned. I should like also to acknowledge Allan Roberts and all that he did. During the early years when I was on the committee, he was the number 1. They worked very well together and clearly the committee continues to work well. The other point that has been raised many times about two bites of the cherry in selective cases is very valuable. However, I think that selective cases is right. You certainly would not want to turn it into something more general.

I was fascinated to read Hansard of 14 February 1990. Although I got my title in 1981, I had no idea of anything about this committee or even that it was being considered. As an Australian, and knowing nothing about Australian law, I was fascinated to see that Lord Rippon of Hexham—the person who introduced all this debate—referred to a report from Senator Rosemary Crowley and talked about this idea coming from Australia. Apparently Australia had it ahead of us here. He went on to say:

“She pointed out how zealous they are in Australia in dealing with Henry VIII clauses, how they can call upon the Minister to justify the powers which he seeks and the way in which they report to the legislature which can then decide whether or not the regulation or order-making power is appropriate”.

That is more or less what we do. He continued:

“Therefore, the Australian Parliament is enabled to legislate with open eyes. I wish we could say with complete conviction that we are doing the same in this country today”.—[Official Report, 14/2/90; col. 1410.]

The fact that we have this committee has made a tremendous difference. But when I was first appointed, I had no idea what all these terms meant. In fact, as time has gone by, they keep changing the terminology and it is pretty hard to keep up to date with it. It is desirable to have this debate for other Members of the House, who might never come to one of our meetings but often read the reports. People working on Bills are usually very careful to follow the recommendations that we put forward. For ordinary Members of the House to get some idea of what we do is very valuable indeed.

There were other contributions. I will never forget Lord Diamond. He evidently nationalised gas and he was determined to avoid it being privatised. He kept us here night after night, all night, while he argued on every single point. We got fed up with it, but nobody could do anything to stop him. He said that,

“we tend to deceive ourselves about the powers we have concerning delegated legislation. For example, where a Bill says that a proposal has to be approved by what we call for short the affirmative resolution, we tend to believe that that means something. It does not. It means nothing. It means that your Lordships can discuss the matter, full stop”.—[Official Report, 14/2/90; col. 1414.]

You can see that he had views of his own on these things.

Lord Beloff, who came in on the same list as I did in 1981 was a very famous historian and professor who set up the University of Buckingham and was a great character. He said that,

“there is also the fact that the volume of legislation which Ministers are persuaded or persuade themselves they need to introduce is of poor quality because little time is given to serious preparation”.

He went on to refer to Lloyd George setting up the welfare state and then said,

“how infinitely larger was the amount of parliamentary time given to a single Bill; how much wider in the country were the consultation and debate. We have debased the legislative procedure for the sake of haste”.—[Official Report, 14/2/90; col. 1421.]

All I can say is that that does not apply any longer. We now spend more and more time. If Lord Beloff was alive he would probably say that we were spending too much time on some of the things that we are debating here for hours.

It is interesting to see the comments from these people. Of course Earl Russell intervened: he had something to say on absolutely everything and was a fascinating character. He said:

“I warmly support the proposal for a committee”.—[Official Report, 14/2/90; col. 1425.]

To get that strength of feeling from him on that was really something.

I always thought that Lord Mishcon was the Peer with the golden words. I think I even said that somewhere in Hansard. He had been on the Greater London Council as the Labour Chief Whip. He had a great reputation there and was a very eminent solicitor. He could put anything into interesting words. He quoted something that had first been uttered some 58 years ago. He said:

“Your Lordships may feel that the price of slightly longer Bills is well worth paying if subordinate legislation is to be reduced”.—[Official Report, 14/2/90; col. 1427.]

That is exactly the opposite of what has happened in the world now. Subordinate legislation is growing and growing. Indeed, many people say that that is one of the problems. We are all very busy governing with subordinate legislation instead of primary legislation. He went on say:

“It has been said so often by Ministers that in this House noble Lords have the right to debate an affirmative resolution and to pray against a negative resolution … There is a tradition of reluctance to press disagreement to a division in the Lords”.—[Official Report, 14/2/90; col. 1427.]

That is still half true, but I would not say that it is entirely true. The noble Lord, Lord Marks, mentioned the defects in the Act, as have many others, and the opportunity that the noble Baroness, Lady Thomas, has suggested.

In October 1994 the fourth report of the Select Committee took up the fact that in 1992, as a result, presumably, of the 1990 debate, the Committee on the Procedure of the House,

“proposed that a Delegated Powers Scrutiny Committee should be established, ‘on a limited and experimental scale in the first instance’”.

Evidently it was so highly regarded, thought of, or effective—I am not sure which—that it was decided in 1994 that it should become a formal, permanent committee. I think that that was a very valuable thing to do.

My own contribution to the committee is limited because all I can do is look at things and try to exercise a bit of common sense. The only thing I can really claim to have had an input into was the very first ever regulatory reform order that we worked on. It was about pub licensing hours and referred to what I think were “minor variations” in pub licences. The order said that a variation need not be advertised in the local press or anywhere else. It could go through because the pubs would look after everyone and make sure that everything was fine, so there would be no problem. I went to a hearing in the borough where my daughter lives and discovered that it is quite a different thing if you live next door to a pub with a beer garden that wants to stay open until two in the morning because the noise spreads around all the nearby houses. I thought that it would be wrong for us to agree to it, even though the policy on regulatory reform was to simplify life and do away with a lot of bureaucracy and red tape. I agree with all that, but suddenly you found that you had fought your corner well at a licensing hearing, but the pub had gone back with what it described as a minor variation and, without you having any idea that it was even under consideration, it would suddenly be in place. I said that I thought it was not right and that we should have a consultation on it. The proposal then went out to all the local authorities and licensing authorities, and the response was really quite extraordinary. People felt very strongly about it. When it came for a decision by the committee, it was agreed that pubs would at least have to post a notice in the window of the premises so that local people, those who would be most affected, could see what was going to happen and would be given a certain period in which to exercise their right to object. I believe that that was the first ever regulatory reform change we made. It also set quite a good precedent for the committee in terms of assessing what really is and is not relevant and what is worth looking at.

It is a very serious committee and the volume of documents it deals with is pretty daunting. You have to read all the papers or you will miss out on what is important. Cases are presented thoroughly at our meetings. All the members speak and different views are expressed on many subjects, all of which is extremely healthy. I think that it is a marvellous committee which is greatly respected. It also works in with other committees such as the Constitution Committee. A lot of the Select Committee reports go with one another in order to make a complete whole. That is very important. This is a valuable debate because it might explain to Members of the House what we are doing and why we believe that it is important to carry on with our work.