Legislation: Skeleton Bills and Delegated Powers

Lord Lisvane Excerpts

Thursday 6th January 2022 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I congratulate my noble friend on securing this debate, her excellent article in the Financial Times and her outstanding speech to move the Motion. I speak as a former member of the Delegated Powers Committee and as a current member of the Secondary Legislation Scrutiny Committee. I think, as has been generally agreed this afternoon, both committees have done an excellent job in highlighting this—not to mince words—blight upon the legislative process.

Of course, skeleton Bills, although a baneful phenomenon, are only part of the problem. It has for some time been routine for Bills of every sort to contain wide ministerial powers, subject to minimal parliamentary control and scrutiny. The Delegated Powers Committee does an excellent job, but it cannot hold back the tide. Understandably, we see these problems through the lens of the relationship between the Executive and Parliament, and the leaching of power away from Parliament by these means should be a matter of wide constitutional concern.

The Government’s own definition of “good law” is law that is

“necessary, effective, clear, coherent and accessible.”

We are dealing here with law that fails the “accessible” criterion, because when Parliament deals with the parent legislation it is so often not clear how delegated powers will be used—as they are too often for matters of principle and policy that should be in primary legislation.

The real losers are our citizens. We in this House may not represent them, but we can act in their best interests. They and business, industry, our national institutions and civil society need to know how the law will be changed, to have the opportunity to comment and make representations, and to know how it will end up applying to them. It is all the more surprising that the House that is elected seems to engage so little with these issues. At the very least, there is the powerful argument, which has already been mentioned, that an Administration of a different party will happily use extensive delegated powers that the party presently in power thought would be for its especial convenience.

Four minutes is not long enough to have a really satisfactory rant, although the present state of affairs certainly deserves it. We are agreed that things have come to a pretty pass, but, as noble Lords have said this afternoon, the real question is: what do we do about it? Most of the sophisticated suggestions about new procedures would probably require extensive amendment of the Statutory Instruments Act, passed in 1946—only yesterday, I should say to my noble friend—when secondary legislation was concerned only with detail and the Donoughmore principles were observed.

The Delegated Powers Committee could routinely report on Bills starting in the Commons when they are introduced there, as it did very successfully with some Brexit legislation. That is taking its recommendation in paragraph 154 a little further. We might have a Joint Committee on delegated powers, but that would depend on a greater degree of interest and enthusiasm at the other end of the building. We could simply vote down draft affirmatives that should have been in primary legislation, although we would then be operating on what I term the “Strathclyde caution”, despite the splendidly fierce words of the noble Baroness, Lady Andrews, a little earlier.

I have heard noble Lords say that there should be no more than two rounds of ping-pong and that there is some sort of convention to that effect. It is not so. For example, the Corporate Manslaughter and Corporate Homicide Bill, which I remember very well, had 10 exchanges—five on each side. So perhaps we should set ourselves the task of making the securing of improper delegated powers really inconvenient, even to the edge of double insistence—not over the edge, but within shouting distance. That might concentrate ministerial minds powerfully.