House of Lords
Thursday 12 January 2023
Prayers—read by the Lord Bishop of Chelmsford.
Introduction: Baroness O’Grady of Upper Holloway
Frances Lorraine Maria O’Grady, having been created Baroness O’Grady of Upper Holloway, of Wood Farm in the City of Oxford, was introduced and made the solemn affirmation, supported by Baroness Prosser and Lord Monks, and signed an undertaking to abide by the Code of Conduct.
Oaths and Affirmations
Baroness Miller of Chilthorne Domer made the solemn affirmation.
Alcohol Duty Bands
We aim to keep alcohol duty rates under review during the yearly budget process and to balance the impact on businesses with public health objectives. In December we announced that the freeze to UK alcohol duty rates had been extended for six months, to 1 August 2023, providing businesses with certainty and aligning with the implementation date for our historic alcohol duty reforms. The Chancellor will reserve his decision on future duty rates for the Spring Budget 2023.
My Lords, I am grateful to the Minister for her reply but she seems to have missed the Question; the Question is about the top band, and she made no mention at all of that. The reality is that a new system is coming in, which I generally welcome, that will actually yield less tax to the Government—which is a surprise, given that we cannot pay nurses enough but are not taking the taxes that we should be. We should be increasing taxes there, not reducing them, which is the case with the top band; in relative terms, it is going down. Would the Government please review this, and change it and increase it, so that alcohol such as vodka is taxed at a higher level than is presently proposed?
My Lords, the Answer that the Chancellor will reserve his decision on future duty rates applies to all bands. I take the noble Lord’s point, but the reforms that we announced in the alcohol duty bands are broadly cost-neutral, and they make an important move to taxing all alcohol by strength rather than the fragmented system that we had before. That is an approach that has public health at its heart, and I hope it will be welcomed.
My Lords, given that alcohol deaths have risen by over 27% in 2021 compared with 2019, and that in the under-50s alcohol is a leading risk factor for ill health and death, have the Government costed what these changes being delayed are incurring as costs to the nation in lost work, lost productivity and cost to the health service? Will all those costs be considered in the review that she has already spoken about in answer to the noble Lord, Lord Brooke of Alverthorpe?
My Lords, as I have said, in keeping alcohol duty rates under review we aim to balance the impact on businesses with public health objectives. The reforms we have made to alcohol duty rates are the biggest reforms that we have had in 140 years. It is right that businesses have the time that they need to adjust to those changes.
Is my noble friend able to tell the House today what position the Government have taken on the public health aspect of reducing alcohol consumption between higher and variable rates of alcohol, depending on the strength of the alcohol, as opposed to minimum-unit pricing?
My Lords, alcohol has become 72% more affordable than it was 35 years ago. Increasing alcohol duties in line with inflation, as was planned last October but cancelled last December, would bring in approximately £1.4 billion annually. Would this not help to pay for the costs to the NHS of alcohol-related harm, and for people such as the nurses who have to treat people with alcohol-related issues, including the many victims of alcohol-related crime?
My Lords, one of the big changes that we are making to alcohol duties is to ensure that higher-strength alcohol is taxed at a higher rate. This puts the points that the noble Lord makes at the heart of our approach. The normal process is to review alcohol duties on a yearly basis and take a decision in the round, and that will continue.
My Lords, what discussions have the Treasury and the UK Government had with the Scottish Government, who clearly have an interest in this in relation to two aspects—one being minimum-unit pricing, which has not had the desired effect that the Scottish Government expected, and the other being their consideration of implementing a tax on whisky producers in Scotland to raise money to cover some of the expenditure of the Scottish Government?
My Lords, the Government have regular dialogue with the Scottish Government—indeed, the Prime Minister is there today. I agree with the noble Lord that the minimum-unit pricing approach has not always had the desired effect. The UK Government’s position is to address this through the level of duties, and relating that to the strength of alcohol. That is the better approach, and one that we can take now that we have left the EU.
Can my noble friend the Minister tell us whether the Treasury, or indeed any other government department, has done any modelling on the effect of the new rates and whether they would lead or incentivise drinkers to drink lower-alcohol drinks and reduce their overall consumption of alcohol?
My Lords, I am sure we have taken that into account in looking at this work, and that we work closely with the Department of Health and Social Care on it. Another aspect of the reforms we are bringing forward is to provide draught relief to allow pubs and other venues to be more competitive with off-licences and supermarkets selling alcohol.
My Lords, I am sympathetic to the Minister answering this Question: she is the victim of a bizarre system of government. Surely this is at least 50% a health issue. The decision-making should certainly rest within the Department of Health, and the Chancellor of the Exchequer should not be deciding what sin and health are about—he should be worried just about the Exchequer.
I reassure the noble Lord that if he looks at the consultation we did on the new duty rates, he will see that public health is at the heart of our approach. However, we need to balance public health objectives with, for example, the impact on businesses. For instance, Scotch whisky is an incredibly important industry in Scotland, and there are new breweries all across the country which are big economic success stories. We need to have a balance between those two approaches.
My Lords, I am pleased that the Minister talked about business. Leaving aside the level of taxation—I have sympathy with my noble friend—this system is quite complicated. It is a sophisticated solution but it also makes it complicated for businesses to respond. So I ask that the Treasury, as well as looking at the level of taxation, looks at the number of different levels of taxation, because the more there are, the harder it is for small and medium-sized businesses to administer.
I appreciate the noble Lord’s point, but the reforms we have introduced simplify, for example, the number of different bands of duties that businesses pay. We have taken significant steps in that direction, and this Government always seek to simplify things for businesses where possible.
Low-alcohol beers and spirits obviously have a lower duty, but the price to consumers is often comparative or even higher than that of other alcohols. What can the Government do to incentivise lower prices for alcohol-free products, which can have significant health benefits?
The noble Lord is right to point to the fact that, under these reforms, lower-alcohol products—regardless of the type of alcohol product they are—will have a lower duty. That is a significant incentive to people. I am not sure about the other drivers of the higher prices that he referred to; that would have to be looked at more carefully.
My Lords, alcohol misuse is one of the prime causes of domestic violence of men against women. Surely increasing the duty should be part of the overall package of trying to reduce that kind of action; making alcohol more expensive might contribute to that reduction.
My Lords, surely it is about the proportion of the cost. I am not clear that the noble Baroness has answered the Question. She has repeatedly said that this is to allow businesses time to adjust. I remember the days when the most eagerly awaited bit of any Budget Statement was the announcement of duties on alcohol. As I understand it, it was always then rushed through the House of Commons that day so that the increases could come in overnight. What is this period for businesses to adjust all about?
My Lords, in addition to the annual level of the duties paid by businesses, we are introducing the biggest reform to alcohol duties in 140 years—for example, as I have said, by reducing the number of bands operating by linking very clearly the level of duty to the level of alcohol in a product. That is a significant reform, and one that businesses need time to adjust to. That is why we have aligned the introduction of the new duty rates with the new system.
Housing: Private Rented Sector
Our priority is to ensure that everyone lives in a decent and secure home. The proportion of private rented sector households has remained relatively stable for nearly a decade, currently accounting for 19% of households. At present, demand for PRS properties is greater than the available supply due to a range of factors, and we continue to monitor the market. We will publish a full impact assessment, setting out the costs and benefits, of our planned private rented sector reforms.
I thank the Minister for her response. Clearly, the supply of houses for rent is an increasing problem. I want to focus on the methodology of energy performance certificates used by the Government for upgrading efficiency. By an early date yet to be confirmed, all rental properties must have an EPC rating of C, which is likely to be both very expensive and unachievable for many properties. EPCs were introduced in 2007 to measure the efficiency of a house based on average energy consumption. While there have been adjustments, the relevant standards still take little account of the age and character of the house, or the carbon embodied in it, so all houses are assessed on the same basis. Therefore, EPC remedies are often based on inappropriate standard assumptions. Please could the Minister tell us how and when this blunt tool will be replaced by a measurement that is fit for purpose?
My Lords, I do not agree that it is a blunt tool. We propose to apply to new tenancies a requirement for an EPC rating of C and raise the maximum spend that landlords are required to invest to £10,000 from April 2025, and to all tenancies by April 2028—the noble Lord is right. If we are going to meet our net-zero strategy, we have to commit even further to consulting on phasing in even higher minimum performance standards. That will take place through the social housing sector but also through the private rented sector.
My Lords, further to the noble Lord’s original Question, is there not an inevitable tension between the interests of the private landlord on the one hand, who wants access to his capital or property and is therefore interested in a short lease, and the interests of families and tenants on the other hand, for whom renting may now be the only tenure and who want a much longer lease? Should we not be moving far more quickly to the position that exists in most other countries, where good-quality rented accommodation is provided by financial institutions as a long-term investment, as they are more prepared to issue the long leases that tenants increasingly want?
My noble friend brings up an extremely important point. The Government have always welcomed new institutional investments in the private rented sector and will continue to do so. We have also made a number of interventions to support the build-to-rent sector, such as the build to rent fund and the private rented sector guarantee scheme. Build to rent boosts housing supply and diversifies the private rented sector, but it also increases quality and choice for renters in cities and towns across the country. I will take the noble Lord’s views back to the department, and we will look into this further.
My Lords, I thank the Minister for her answer to the first part of the Question, but does she accept that part of the reduction in supply is due to some landlords choosing the more lucrative Airbnb lettings and platforms, and that the Government’s policy to restrict mortgage interest relief on buy-to-let mortgages has inadvertently contributed to this loss of homes by exempting those lettings from that relief? Will the Government look seriously at this and other tax issues to level the playing field in order to attract landlords back to much-needed longer secure tenancies?
The noble Baroness brings up an important point. We know that this has become more important over the last year. We have committed as a Government to consult on the introduction of a use class for short-term lets; I think that is important. Subject to the outcome of that consultation, this will help local authorities to better control the increase of such uses where landlords seek to use existing homes for short lets, rather than using them for longer lets.
My Lords, given the ongoing cost of living crisis and the reliance of many people for survival purposes on food banks, what impact do the Government believe the lack of available homes to rent is having on the ability of councils and other providers to provide for the homeless?
My Lords, any shortfall in the number of permanent long-term homes available in the market will have a pressure on people looking for those homes and could put pressure on their household budgets, because if people are desperate for housing they will pay more than maybe they should have to. The Government are looking at all that. However, we have helped tenants and all people across this country. We have put in £37 billion of support for people who need it in 2022-23 to help us through this difficult time, and we will continue to look at making sure that we have as many houses of all types of tenure in our stock available for people.
Is it possible to look at the tragedy of increased evictions that is happening now? Are the Government going to come up with a solution to these two opposites: the tenants who can no longer afford the increase in rent and the landlords who are stymied in a similar way? We need, and I recommend, a debate in the House about this problem.
My Lords, I recognise my noble friend’s sincerity in her initial Answer. Nevertheless, 95,000 families are living in temporary accommodation. In recent months, we have seen rent rises nationally of 17% and as high as 59% in some boroughs of London. Will my noble friend put some motion and activity behind a proper analysis so that we can produce an urgent way forward?
The Government have made it clear that, within this Session, they will bring forward the private renters Bill, which will look at the issues that my noble friend raises, as well as many others. The Government have allocated £654 million in funding this year and next year on homelessness and people in temporary accommodation. Recently, because of those issues that we know are happening, we have topped that up in December by another £50 million. We are doing everything that we can in this difficult time to support these vulnerable people.
My Lords, as a serving councillor, I deal with cases of homelessness every day. The number is increasing every day because of eviction from private tenancies and/or the affordability of those tenancies, and fewer landlords coming forward. With social housing waiting lists now at over 1 million due to decades of underinvestment in social housing and an annual loss of 24,000 social homes a year due to demolition and sales under the right to buy, what are the Government going to do to address the housing emergency?
My Lords, the Government are doing many things. When the renters reform Bill comes through—it was a Conservative Party manifesto commitment—it will look at these issues, particularly in the private rented sector. However, this is a much bigger issue across all sectors, as the noble Baroness said. We are doing an enormous amount, as I have said and am not repeating, and will continue to do so. Just to say, I think that an important thing that will come out in the renters reform Bill is that we will remove Section 21 evictions.
The Government have not considered that, although we may have to consider such measures for temporary accommodation as a result of pressures due particularly to immigration from Ukraine and Afghanistan. However, it is up to local authorities to find innovative responses to the pressures that they are under.
Ah, the noble Lord, Lord Kennedy—once again. The Government have been clear about our commitment to addressing the historic imbalance in the leaseholder system, as he knows. The Leaseholder Reform (Ground Rent) Act 2022 came into force in June last year. These changes to ground rent for future leases are just the beginning of our reforms. Further legislation will follow later in this Parliament. It is a complex long-term reform programme, and it is important that we get the detail right.
My Lords, I am aware and am grateful that the noble Baroness is committed to leasehold reform. I have no doubt about that. The Bill, when we get it, needs to: be ambitious by giving proper rights to leaseholders; enable them to purchase their freehold if they want to; make greater use of commonhold; or just get rid of the stupid, petty rules such as the colour of the curtains that one can hang in one’s own home or the outrageous rip-off charges levied against leaseholders, day in and day out. What assurance can she give the House that the Bill will be truly ambitious and transformative, not just a damp squib?
My Lords, the Government have already committed to: making it easier and cheaper for leaseholders to extend their lease or buy their freehold; banning new leasehold houses, so all new houses will be freehold from the onset rather than in exceptional circumstances; delivering a reformed commonhold system as an alternative to leasehold ownership for flats; and giving leaseholders more information about what their costs cover and ensuring that they are not subject to unjustified legal costs. I am sorry that the noble Lord could not find time to come to a meeting that I agreed to the last time I was at this Dispatch Box talking about the same issue. It was at that meeting that we discussed what noble Lords were expecting to see and how we could meet those expectations. However, as I say, we will bring forward further leasehold reforms later in the Parliament but I cannot say at this time exactly what date it will be.
The Minister will be aware that the property companies that own freeholds are able to impose on leaseholders any legal costs that might arise from a leaseholder’s appeal to a tribunal in the face of the freeholder’s exorbitant service charges. When will this extraordinary legal anomaly be redressed?
The Government believe that leaseholders should not be subject to unjustified legal costs and should be able to claim their own legal costs from their landlord. The Government are committed to taking action to address this as soon as possible.
My Lords, I want to pursue what the noble Lord, Lord Kennedy, called rip-off charges, which the Government could take urgent action to address. I shall give the Minister an example. Fire doors are now to be inspected—rightly. Leaseholders are unable to make the arrangements for that inspection but freeholders or their agents do. One leaseholder contacted me to say that they are being charged £80 for their front door to be inspected each time—£320 a year. That is a rip-off service charge. What on earth are the Government going to do to address these rip-off service charges?
I cannot comment on the individual case, but the law is already clear that service charges must be reasonable. That is set out in Section 19 of the Landlord and Tenant Act 1985. If leaseholders feel they are being ripped off, they can apply in First-tier Tribunals for determination on this. However, I agree that there is more to do. The Government are committed to ensuring that charges, particularly service charges and these extra charges, are transparent. There should be a clear route to challenge or redress if things go wrong.
My Lords, in light of the commitment made by the big six lenders to accept mortgage applications for flats with building safety issues from Monday 9 January, will the Minister confirm that the Government will monitor their lending decisions to ensure that this time their commitments will be fulfilled, so that this part of the housing market can be unfrozen?
The right reverend Prelate brings up an interesting point. I do not know exactly what the Government will do, as the announcement was made only this week. However, I will find out exactly how we will monitor them and the process, and come back to her.
My Lords, I apologise to the right reverend Prelate. Can I press the Minister on the timetable? She said that she expects the Bill to be introduced before the end of this Parliament. Does she mean that it will be introduced before the election? It is not only disappointing that we have had delays but profoundly destabilising. For example, leaseholders no longer know whether it is safe to pursue enfranchisement or whether they should wait for the Bill. Another thing that has happened in recent years, with the extension of permitted development, is that there are blocks of flats with leaseholders held captive by freeholders who are pursuing upward extensions under permitted development, without the protection of law. These leaseholders do not even have protection in case they have to be decanted while building works are going on. It is a very serious situation and it is accelerating. I would like the Minister to advise on that point.
As I have made clear a number of times at this Dispatch Box, these measures were in the manifesto in 2019. We have always said that we will bring forward a reform Bill in this Parliament and that is what we intend to do. We just have to wait and see; I am very sorry. I totally understand that this is causing some issues in the sector. That is why we will get the Bill through as soon as we possibly can, but it has been quite complex and we need to get it right.
My Lords, I welcome the commitment that my noble friend has just given to make it easier for leaseholders collectively to enfranchise, to make it easier for an individual leaseholder to extend the lease, and to move more towards a system of commonhold rather than leasehold. I understand that she cannot give a commitment about the timetable but, given that work on the Bill is clearly well advanced, can she consider publishing it in draft so that when it comes forward it can have a speedier passage?
I would love to put the Bill out in draft, because I would love to stop these Questions coming every three months from the noble Lord, Lord Kennedy. We have committed as a Government to making enfranchisement easier and cheaper for leaseholders, and that is important. We have also committed to abolish marriage value cap ground rents in enfranchisement calculations and prescribe rates to be used. We have already made clear that this is what we will do. We just have to be patient until the Bill comes forward.
My Lords, back in 2018 the Government set up the regulation of property agents working group, which I had the honour of chairing. This came forward with proposals that managing agents for blocks of flats who look after leasehold properties should be properly regulated, to deal with a number of the issues that have been raised. Can I have the Minister’s assurance that this ingredient will form part of the new Bill?
My Lords, this Question has been about the plight of leaseholders, and the previous one was about private tenants. There are also problems in social housing and for people paying their mortgage, or indeed being able to afford a mortgage in the first place. Do the Government not recognise that all the things the Minister has referred to are a piecemeal approach to this? We have a crisis in every different sector of tenure in the housing market. It is important that the Government do not rely on the smaller measures to which she has referred—and given no date for. We need a whole new approach to housing policy and a whole new relationship between the Government, local government, landlords and, particularly, the big house builders and developers, who seem to make more money from knocking down buildings than they do from increasing affordable supply.
The Government are totally aware of the issues relating to all sectors of the housing industry in this country and those that affect tenants and home owners at the moment. We are dealing with this, but it has to be dealt with in this way; you cannot throw the whole thing up and look at it in one big piece. It has to be dealt with well and properly for the future, because a good, secure and decent home is what everybody deserves and is certainly something that is important for this Government.
Social Mobility Commission
My Lords, leadership of the Social Mobility Commission requires a strong understanding of, and a demonstrated commitment to, the cause of social mobility, particularly in education and business. We sought a chair with excellent leadership and persuasive communication skills. Both Katharine Birbalsingh and the interim chair, Alun Francis, displayed these skills in abundance through their initial recruitment and their work at the commission in delivering a fresh approach to deep-rooted challenges. We have no plans to review the job specification for this role.
My Lords, the Minister is working overtime today. To ensure she is on the appropriate rate, I suggest she has a word with my new noble friend Lady O’Grady of Upper Holloway, whom I am very pleased to see in her place. I thank the Minister for her reply, but the resignation of Katharine Birbalsingh came after just 14 months and after a number of statements were made which demonstrated that she was ill equipped for the role. She was appointed in addition to her day job as a head teacher. The issues of social justice that need to be addressed are so pressing that I do not believe it is realistic to expect the person tasked with leading that work to do so in their spare time. Will the Government recognise those pressing issues and the increasing level of child poverty—which, incidentally, used to be in the title of the Social Mobility Commission—by refocusing, by renaming the body the social justice commission and by making its chair a full-time role?
My Lords, the Government have no plans to do that. Katharine made very clear why she left in her article in Schools Week. The Minister for Women and Equalities has been very clear about how grateful she is to Katharine for her time as chair and also to Alun Francis, her deputy, who has now taken over as interim chairman. The commission has done excellent work under Katharine’s chairmanship and Alun’s deputy chairmanship, and that work will go on, so we have no plans to change anything at the moment.
My Lords, as I have read it, the person who has resigned felt that they were doing more harm than good in the end. Can the Government make sure that they define exactly what they are supposed to do, and that the public know what that is, so that when the next person takes up this role on a permanent basis, we can all know what to expect and they can know what to deliver?
My Lords, it is very clear what the SMC should be doing. It is written down in its agreement with the Government. It has been delivering that, and it will continue to deliver that. I know that the commission met on 9 January under the deputy chairman, Alun Francis, and it is continuing to work and continuing with the priorities set previously by Katharine, Alun and the commission.
My Lords, I offer the Minister congratulations on answering three Questions out of the four, particularly since she has done so without any support from officials in the Box. I have never seen this before. In view of the debate that we are about to have on relations between Parliament and the Executive, does this indicate how the Department for Levelling Up, Housing and Communities shows no real interest in the proceedings of this House?
My Lords, I assure noble Lords that I have been extremely well briefed—I hope—on this issue. This issue, interestingly enough, is not to do with DLUHC. It comes from the equalities grouping, which is the responsibility of the Cabinet Office. The reality is that when one is answering 10 or 12 questions in 10 minutes, one cannot get anything from the Box, so it is much better that the officials stay away and brief the Minister beforehand.
My Lords, I start by congratulating the Minister on her stamina this morning. She deserves a cup of coffee after this. My noble friend Lord Watson mentioned child poverty, so I remind noble Lords that last year, the Social Mobility Commission reported that almost 700,000 more children were living in poverty than in 2012. Will the Government establish a new child poverty reduction unit in No. 10 to accompany the work of the commission?
I am not aware of any plans to do that, but I will take the idea back. I have yet to meet my officials. I was officially put into this role only on Monday evening, so at my first meeting, I will certainly talk to officials about that and will talk further to the noble Baroness.
My Lords, it is working. The annual State of the Nation report from the Social Mobility Commission, published on 23 June, talks about the progress made towards improving social mobility in this country. Produced under the previous chairmanship of the commission, it sets out a new approach to social mobility. It introduces a new social mobility index, which provides a systematic way of measuring social mobility across the whole of the UK. Data will now be compiled annually and at longer intervals of five and 10 years. This is important because we need to show the trends and to be able to prove it, as at times we get conflicting evidence about what is happening to social mobility. Certainly, the number of children from deprived areas who are going to university is going up.
My Lords, the Minister will know that two months ago, the commission reported that schools were no longer agents of social mobility. She will also know that universities now are not always guaranteed agents of social mobility because of the high level of graduate unemployment or underemployment. Will she ensure that whoever becomes the head of this commission really understands that the curriculum in general schools today is not serving the purpose of social mobility for hundreds of thousands of students? At least 300,000 students are disadvantaged still.
In an answer to an earlier question, the Minister referred to the remit and the scope of the work of this body on social mobility. Is there not a glaring problem in this House, where there is a clear restriction on any kind of social mobility? I am referring to the 92 places that are reserved for hereditary Peers. Is there any progress at all towards greater social mobility among this sector, and if not, why not?
I agree with my noble friend that it has to start with education. That is why we had an extremely strong person in the chair at the time: her views on education were different, but they were extremely strong about the importance of education for children and for social mobility. I am pleased that we have a new Select Committee discussing this issue, and I hope that it will take forward those issues because they are important.
Windrush Lessons Learned Review: Implementation of Recommendations
Commons Urgent Question
The following Answer to an Urgent Question was given in the House of Commons on Tuesday 10 January.
“Since the injustices of Windrush came to light, there has been a concerted effort across the Home Office to right the wrongs suffered by those affected. That work continues, and the department is making sustained progress on delivering on the recommendations of the Windrush lessons learned review of 2020 and the commitments made in the comprehensive improvement plan of 2020. In her report last year, the independent reviewer Wendy Williams concluded that 21 of her recommendations had been met or partially met. She acknowledged that the scale of the challenge she had set the department was significant and that change on that scale takes time.
We have made progress in delivering against Wendy Williams’s recommendations. In October 2022, the Home Office established the Office for the Independent Examiner of Complaints, and Moiram Ali was appointed as the independent examiner following a public appointment recruitment process. The Home Office has also held over 200 engagement and outreach events across the country, and the Windrush help teams have attended over 120 one-to-one surgeries to help people apply for documentation.
As of the end of October 2022, the Home Office has paid out or offered £59.58 million of compensation to Windrush victims. The Serving Diverse Communities: Acting on Our Values learning package was launched across the Home Office in June 2022, starting with recommendation 24 on learning for senior civil servants and recommendation 29 on diversity and inclusion. The learning package for recommendation 6 on the history of the UK and its relationship with the rest of the world has been designed and is undergoing final review prior to implementation.
I am pleased that the independent reviewer of Windrush progress has concluded that there are several areas in which very good progress has been made, but she rightly holds the Home Office to account for areas and recommendations where sufficient progress has not yet been made. She concludes that there can be ‘no doubt’ that the department has risen to the ‘daunting challenge’ she set us.
We know there is more to do. Many people suffered terrible injustices at the hands of successive Governments, and the department will continue working hard to right the wrongs and to deliver a Home Office worthy of every community it serves.”
My Lords, is not the treatment of the Windrush generation one of the most shameful episodes in our post-war history? These people helped rebuild Britain, and their reward was that many were wrongly detained and threatened with deportation; 83 people were actually deported. Why have only 1,300 out of an estimated 15,000 been compensated so far? Why are the Government now going to implement only some of Wendy Williams’s recommendations, not all as originally promised? Can the Minister update us on the figure? Is it still eight out of 30? Have the recommendations for a migrants’ commissioner, and to extend the powers of the Independent Chief Inspector of Borders and Immigration, been dropped? We still have no anti-slavery commissioner appointed. Wendy Williams demanded cultural change, but on the 75th anniversary of the Windrush generation, we are still a long way from it. Would it not be the final betrayal of that generation if there were not the real change that Wendy Williams demanded?
I agree with the noble Lord that the injustices of Windrush were an outrage. Clearly and unfortunately, it was Governments of all complexions who allowed that scandal to unfold. The noble Lord asked me whether the Windrush compensation scheme is failing. The Government—and I, as the supervising Minister for the Windrush compensation scheme—are very clear that we must compensate members of the Windrush generation and their families for the losses and impacts they suffered as a result of the scandal. We believe that we have made significant progress, having now offered a total of more than £59.58 million in compensation. As to the question about recommendations, the noble Lord knows that the Government will not comment on leaks, and I do not propose to do so today.
My Lords, this year there should be jubilant celebrations of the 75th anniversary of Windrush, a symbol of Caribbean people coming to Britain with good intentions. However, because of the Windrush scandal, one can be forgiven for feeling anxious, nervous and worried when we hear reports regarding government plans to go back on Wendy Williams’s recommendations. In my recent letter to the Prime Minister, I stated that this would be disrespectful and perceived as wicked, vindictive and heartless. This is a matter of national pride and we must be determined to right the wrongs, injustice and hurt. Compensation should be accelerated before more claimants die. Once again, therefore, will the Government categorically assure me, this House and the Caribbean community that these rumours are not true and that they intend to fulfil all their pledges?
As I observed to the noble Lord a moment ago, the Government do not comment on leaks, and I do not propose to do so now. On the separate question that the noble Baroness asked, I entirely agree that there should be a fantastic celebration of the 75th anniversary of Windrush, and the successes of the Windrush compensation scheme and the Windrush scheme in granting status are factors to feed into that great celebration. On the final aspect of her question—the speeding up of payments under the Windrush compensation scheme—I am glad to report that we have issued final decisions in more than 59% of the claims received and have concluded more than 43% of claims. In July 2021, we also published a redesigned primary claim form and refreshed casework guidance with the aim of reducing the time taken to process claims and improving people’s experiences of applying to the scheme. We are recruiting additional caseworkers, directing resources to maximise performance and refining processes so that cases can progress as quickly as possible. We have delivered on the promise to recruit and post at least 120 EO-level casework resources by the spring of 2022, and we will continue to recruit additional resources.
My Lords, I am grateful to my noble friend for outlining that next year we will celebrate the wonderful arrival 75 years ago of those who have given so much to this country, many of whom paid with their lives fighting for it. However, celebrations cost money. Can my noble friend outline what money the Government will allocate centrally and for communities to be able to celebrate this?
My Lords, the Minister’s Answer to my noble friend on the Front Bench on the meeting of claims for compensation was a bit complacent. Can he explain why the number of claims that were dealt with last year was much lower than in the previous year? There must be some reason for that. Can he also comment on the remarks made by Wendy Williams in her report on the delays to the training of officials dealing with the Windrush scandal? Why has this been delayed and what steps is he taking as the Minister responsible for dealing with this problem?
On the reduction, I hope the answer is demonstrated by the following statistics. Some 4,558 claims have been received by the Windrush compensation scheme, for which, as I said a moment ago, the total amount of compensation offered has been £59.58 million. There are 2,699 claims with final decisions—that is 59%—and 1,967 concluded claims: those are claims that received a final payment, a nil offer that has not been challenged in 60 days or rejected on eligibility, or claims that have been withdrawn. As regards the work in progress, there are 1,859 claims, and preliminary offers have been made in 666 of those. Only 522 claims are more than a year old.
My Lords, will my noble friend accept that we are getting rather fed up with the tardiness of the payment of compensation, whether it is to postmasters, those who had bad blood products or this very important group, the Windrush people? Will he therefore not be complacent about saying that there are 41% still to be dealt with but rather say that the 41% will be dealt with well before the end of this year?
It is certainly the department’s intention, and I thank my noble friend for that question. The department is making real efforts to reduce the work in progress and the time taken to consider claims, taking the steps I have already outlined by recruiting further caseworkers and accelerating the process. Indeed, we have a method of expediting claims, appropriating exceptional cases where it is necessary to consider a claim out of date order: for example, where the individual has a critical or life-shortening illness which means that there is a substantial risk that they would not receive the outcome of their claim if it were considered in date order.
My Lords, many of the recommendations in the Windrush Lessons Learned Review also have implications for how the UK should steer its current refugee and asylum policy: recommendation 9 concerning the creation of a migrants’ commissioner, recommendation 19 regarding direct contact with migrants and recommendation 25 requiring consideration of risks to vulnerable groups or individuals. What assurances can the Minister provide that there will not be a repeat of the mistakes made with the Windrush generation, this time with asylum seekers and refugees, and can he comment on any progress made on recommendation 9 and the appointment of a migrants’ commissioner?
I thank the right reverend Prelate for that question. As to the last point, I am afraid I cannot comment on the leaks in the Guardian, but on the first point, I can reassure the House that we are certainly very alive to the issues that the right reverend Prelate raises. The Windrush generation was rightly identified as British and had a right to be in this country. That remains separate and distinct from the enforcement policies on individuals who have no right to reside in the United Kingdom. It is only right that the Government do what they can to protect our borders and enforce the Immigration Rules. Successive Governments have done this, in line with public expectations. Wendy Williams’s Windrush Lessons Learned Review is not about being soft in our objective to protect the country or our borders. The Windrush scandal was about the appalling treatment of those who had a perfect right to be in this country. They were not here illegally. It is only right that the Government do what they can to protect our borders and enforce the Immigration Rules.
My Lords, as my noble friend Lady Benjamin said—her tremendous work in this area should be acknowledged in this House—the way in which the Windrush generation has been treated is disgraceful, with some dying before the wrongs they were subjected to could be corrected or compensated. Without commenting on leaks, does the Minister agree that a failure to implement all the recommendations of the independent Williams review would add insult to injury for the African-Caribbean community?
Democracy Denied (DPRRC Report)
Motion to Take Note
My Lords, we are debating two unprecedented reports from the House of Lords Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee. Never before have two committees acted in tandem to draw attention to a serious parliamentary problem. The number of noble Lords signed up to speak on a matter many would consider to be just a legal, technical, boring parliamentary issue is also unprecedented. The issues may be that, but when laws are passed without proper parliamentary scrutiny, they cease to be just technical, as they threaten the rights and freedoms of the individual. Both our reports express considerable alarm and criticise the increasing tendency of all Governments in recent years to adopt procedures that effectively bypass Parliament’s role in the legislative process.
Why are we reporting now? The Delegated Powers Committee and the Constitution Committee have drawn attention to the abuse of excessive delegated powers over many years. However, this time we did a comprehensive study and looked at these issues going back 90 years, and we found that the problems identified have been worsening over the last 20 years. The result of this trend has been an increase in the power of the Government at the expense of Parliament.
It is worth reminding the House and the Government that the committee members who drew up these two reports are not naive new colleagues. The combined parliamentary experience of our committee members is over 520 years, with some members having exceptionally long parliamentary careers. For example, the noble Lord, Lord Rowlands, entered the House of Commons in 1966, and the noble Lord, Lord Lisvane, has 51 years’ experience of Parliament. That does not make us experts, of course, nor does it give us any moral authority over the Commons. It just means that some of us have seen these problems growing for a considerable time. Having reviewed the use of delegated powers over the last 90 years, we concluded that,
“a critical moment has been reached and it is now a matter of urgency that Parliament should … take stock, and consider how the balance of power can be re-set.”
Let us be clear that the reports and all our members accept that delegated legislation is absolutely essential; no democratic Government in the world can function without it. However, far too often primary legislation is just skeletal, with all the details filled in by secondary legislation, which may get little or no scrutiny at all. I shall let my noble friend Lord Hodgson of Astley Abbotts set out the injustices caused by skeleton Bills.
Our Delegated Powers Committee report identified some other key issues and abuses. There is a completely inappropriate use of excessive Henry VIII powers. This, as your Lordships will know, is a 584 year-old device, which allowed the King to make and unmake any laws he liked by proclamation. That ancient power now rests with Ministers, who can use affirmative and negative resolutions to rewrite or abolish Acts of Parliament. Criticism of Henry VIII powers goes back to 1929 when the Lord Chief Justice, Lord Hewart, criticised them in his book, The New Despotism. If he thought that it was a bit despotic then, I think he would struggle to find language pejorative enough to describe today’s legislation.
We all agree that Henry VIII powers are necessary at times. However, after the European Union (Withdrawal) Act, where many powers were appropriate, we saw that departmental lawyers were tacking them on to tiddly little Bills. Their only justification was, “just in case”—but just in case of what? If some new emergency arises, both Houses can pass emergency primary legislation in a couple of days. We have all had examples of that. However, we have had examples of Ministers taking the power not just to amend a current Bill and other related, relevant Acts, but any Act of Parliament passed from 1066 onwards. That is utterly unacceptable; any Henry VIII power should always be very narrowly drawn and use the affirmative procedure.
The other worrying and increasing abuse we saw was legislative sub-delegation of power, or tertiary legislation. We see Ministers able to confer power on themselves and delegate it to some other body, which may include a power to amend or repeal an Act of Parliament. These bodies have, of course, impeccable credentials; they may be royal colleges or learned institutes, but they can make rules and regulations which determine the fate of individuals by setting entry standards, fees and procedures. We quote quite a few examples in our report. These laws can have a big impact on citizens, are legally enforceable and Parliament may never see them. We say that conferring legislative sub-delegation of power is potentially a more egregious erosion of democratic accountability than a simple delegation to a Minister to make secondary legislation. We say that any sub-delegation or tertiary legislation must be limited and specific and its exercise must be subject to parliamentary scrutiny, even if simply by laying it before both Houses. There must also be a statutory obligation to consult all those affected, and the delegated powers memorandum should set out the full extent of the power, why it is necessary and how it will be constrained.
We drew attention to disguised legislation. Noble Lords may ask how legislation can be disguised. It comes in various forms. First, there is guidance, which departments call advisory and say that it need not be approved by Parliament. The Department for Education is a serial offender. When I challenged it, for example, on the guidance on the new school uniform legislation, the response was that it traditionally never set out its guidance before Parliament, so why on earth should it start doing it now? No matter how extensive, new or radical the guidance, the arrogant attitude was that the department and its stakeholders knew best and that we in Parliament should keep our noses out of it.
That leads to another excuse for not consulting Parliament. Departments say that they have very wide consultation with professionals, experts and stakeholders who know the subject matter, and are much better qualified to comment on the legislation rather than ignorant parliamentarians. As Adam Smith said,
“People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.”
I suggest that the same can be said of experts and stakeholders, whose common interest may not be that of the ordinary person.
The other rapidly increasing trend has been guidance which one “must have regard to”. To all intents and purposes, this is treated like statute law by those who must have regard to it. Noble and learned Lords will rightly say that it is not legally mandatory. One can disregard it, provided that one has had regard to it in the first place, and then come up with impeccable, judicial review-proof reasons for disregarding it. However, in reality, 99% of people and organisations will treat it as mandatory, because that is the impression given in the guidance. It is in the spin of the government press releases which accompany the guidance, and people are simply afraid not to follow it. That is legislation in disguise.
The final bit of disguised legislation that we encountered was guidance or rules which were called lots of fancy names to hide the fact that they should have been statutory instruments. We came across instructions called “determinations”, “protocols”, “directions”, “arrangements” and even “public notices.” The last one was dear old Henry VIII’s Proclamation by the Crown 1539 Act in a new form. However, this time the proclamation of the new law by the Treasury would be published in the Times and the London Gazette.
Noble Lords may ask why all this matters. It is not just some esoteric parliamentary debating point. The way in which our laws are made have profound effects on everyone in the country. Delegated legislation is essential to run the country, but it should be open, transparent, debated and not disguised. The excuse that excessive delegated powers are needed because Parliament cannot move quickly enough has been proved false on many occasions, not least by Parliament’s reaction to Covid legislation. However, our committee did not stop at pointing out what was wrong. We attempted to provide solutions.
We said that we must challenge the culture of Whitehall. Making laws is a democratic process, not just a functional legal exercise for clever lawyers in the Office of the Parliamentary Counsel. We called for the Cabinet Office Guide to Making Legislation to be rewritten. This is the bible that legal drafters have to follow. The part on delegated legislation was not fit for purpose and deliberately directed young drafters to follow the easiest way to bash through secondary legislation without Parliament considering it.
We drafted a revised guide which puts parliamentary democracy at the heart of decision-making when drafting laws and we set out some principles, the first of which is that our democracy is founded on parliamentary sovereignty, the rule of law and the accountability of the Executive to Parliament. We said that, where any provision in a Bill delegates legislative powers, departments must satisfy themselves that the delegation is framed in a way that takes into account, to the fullest extent possible, the principles of parliamentary democracy, especially Parliament’s ability to scrutinise it.
So that is what we said. What have the Government done since we reported? Well, to be fair, they have rewritten the Cabinet Office guidelines and incorporated some of what we said, but it is not really in the form of instructions to the 50 to 60 drafters in the Office of the Parliamentary Counsel. It says that the Delegated Powers Committee has said, “Here’s some revised guidance, and here’s a copy of it”—but I suggest that there is a subtext that they can take it or leave it. They do not have to follow it. I say that because there is a complete failure in the guidance to understand this House’s concern about delegated legislation and powers.
Section E of this 120-page guidance document, on Bill handling in the Lords, has the wonderful opening line:
“The House of Lords is usually the more difficult House to take legislation through”.
It then lists various spurious reasons for the Lords being difficult. This first of these is:
“The Lords minister and Whip taking the bill through the House is less likely to be familiar with the subject matter of the bill and will require additional briefing.”
We can all chuckle but, quite honestly, I find that offensive and plain wrong. It was my experience in the Commons, and I see it here in the Lords, that Lords Ministers and Opposition spokespersons are usually more able than their Commons counterparts. The Commons can have four or five Ministers in a department to cover the whole brief, but the Lords Ministers are usually on their own, possibly with a Whip helping out on a few amendments, and have to master the whole departmental brief.
So I ask my noble friend the Leader to please tell the Cabinet Office to rewrite this bit of the guide, and explain that the House of Lords is more difficult because we care about parliamentary scrutiny, about excessive powers being given to Ministers and others, about hidden laws, about Acts of Parliament being overturned at the stroke of a ministerial pen, and about skeleton Bills with the details filled in later outside Parliament. It is called parliamentary democracy and that is the only reason both our Houses exist. So the guidance is still not good enough. I accept that much of it has to be technical, but if the 50 or so legal drafters follow it as currently drafted, we will not see any change and abuses will continue.
Just before Christmas, the noble Lord, Lord Rooker, talking about the inappropriate delegated powers in the precision breeding Bill, said:
“It cannot be right for Parliament to abrogate the power. These Bills are drafted by parliamentary counsel. My conclusion from the debates we had earlier this year in January, and will have again next January on Government by Diktat, is that parliamentary counsel should be renamed ‘government counsel’. They are government employees located in the Treasury.”
Well, that is wrong: it is the Cabinet Office.
“They actually act against Parliament, because they constantly draft Bills, following instructions from Ministers, that remove powers from Parliament—not this House but Parliament—and give them to the Executive.”—[Official Report, 14/12/22; col. 713.]
The Office of the Parliamentary Counsel has a duty, in my opinion, not just to draft legislation which is clever and gives departments devious ways to change laws in future without coming to Parliament, but to draft laws with the maximum or appropriate level of parliamentary scrutiny, so that everything which affects the liberty, livelihood and freedoms of the individual is debated or has the chance to be debated—or even seen —by Parliament. That is what is required and nothing less.
The abuse of delegated power is in effect an abuse of Parliament and an abuse of democracy. Our reports will, we hope, be a prompt to strengthen Parliament in the coming years: not the Lords over the Commons, but the legislature over the Executive. We have identified the problem, produced the evidence and offered the solution. We call on the Government to rise to the challenge of delivering real parliamentary democracy. That will be good for the Government, good for Parliament and good for all the people of the United Kingdom. I beg to move.
My Lords, my term of office as the chairman of the Secondary Legislation Scrutiny Committee comes to an end in a couple of weeks, but over the past three and a half years I have had the chance to see, at first hand, some of the ways that, almost imperceptibly, the Government have been gaining power at the expense of the two Houses of Parliament. It is that process that forms the background to our report, Government by Diktat.
We have just heard a very powerful speech from my noble friend Lord Blencathra, the immediate past chairman of the Delegated Powers Committee, our sister committee. I support entirely the points he made and the views he expressed. The DPRRC plays a vital role in drawing the attention of the House to the weaknesses in proposed legislation. However, once the legislation has gone through, its work, inevitably, is done. At that point, it is the SLSC that has to consider, examine and, where necessary, draw the House’s attention to the real-life consequences of what has been passed. The SLSC is supported by expert, informed and very hard-working staff, who will examine some 600 to 700 regulations every year. As my noble friend Lord Blencathra said, each of these binds on every citizen of the country as firmly as any primary legislation.
If I may use a cinematic analogy, the DPRRC takes a snapshot; the SLSC is a cine camera, recording the changes that go on week by week, month by month, as the regulations are brought forward. We have been concerned that our cine camera has seen yet more changes since the time we produced Government by Diktat. We have produced two subsequent reports: What Next? The Growing Imbalance between Parliament and the Executive, which we published in April last year, and then Losing Impact: Why the Government’s Impact Assessment System is Failing Parliament and the Public in October. While these two reports will come to be debated another day, they do provide important contextual background to the issues that concern us in Government by Diktat.
The concerns of the SLSC can be grouped into two primary pieces. The first is the growing misuse of secondary legislation. Secondary legislation should be restricted to what it says on the tin: issues of secondary importance. But, increasingly, this is not the case. My noble friend referred to the long-running saga of Henry VIII powers, but recent years have seen increasing use of what have become known as framework or skeleton Bills—or, perhaps more accurately, framework or skeleton clauses in Bills. As we pointed out in our report, these skeleton clauses are so devoid of content that they leave the real, practical application of the law to a ministerial pen or to regulation.
Now, again as my noble friend said, there are understandable reasons why regulation has to be used in various places. Particularly in the area of technology, the rate of change is faster than the rather stately pace of primary legislation can encompass. Regulation has to fill the gap. That is understandable and entirely reasonable. Less attractive is the impression that the intellectual heavy lifting required to think the policy right through has too often been avoided in favour of essentially making it up as you go along. Even more worrying is the possibility that Ministers do not even wish to have detail in primary legislation, because of the embarrassment if it proves that the wrong choice has been made: much easier to reset the policy direction by using secondary legislation.
Nobody in your Lordships’ House could reasonably argue that secondary legislation is as effectively scrutinised as primary. In part, this is a question of time—witness the number of regulations we have—but, much more importantly, it is a question of process. Secondary legislation is unamendable: it can be passed or rejected but it cannot be amended. For this reason, neither House has proved keen to press the button marked “reject”—and, on the very rare occasions where your Lordships’ House has pressed the button, we have had almost immediately the constitutional equivalent of full-scale nuclear war.
As issues coming through secondary legislation become more and more fundamental, I fear that the existing scrutiny procedures are proving less than adequate for the increasing weight placed on them. That is the summary of the SLSC’s worry about the big picture, but at the same time there are some disturbing short-term trends about the way the Government are increasingly casual about providing the information required under existing statutory provisions which is necessary to enable the House to scrutinise in sufficient detail and hold the Government to account.
There are two major areas. The first is impact assessments. I shall give the House some indication of what this means. Every regulation that has an impact of more than £5 million is supposed to have an assessment tabled at the same time as the regulation is tabled. I shall cite a practical example to give a bit of colour. The House will recall the controversy around the Government’s decision to require the compulsory vaccination of care home staff in the latter part of the pandemic. The wisdom or otherwise of that policy is nothing to do with the Secondary Legislation Scrutiny Committee, but the decisions that lie behind it are, and they are of such importance for the Committee to draw them to the attention of the House. The two essential issues were how many care home staff were likely to resign as a result of being forced to be vaccinated, either because they had religious views about it or, in the case of women, because they had worries about their fertility, and the long-term issue of the knock-on effects for the social care system and hence for the health service. When the regulations were laid on 20 June there was no impact assessment. We asked the Minister to attend our meeting on 13 July. He did, and we explained to him our concerns about the lack of an impact assessment. He agreed that there should be one and undertook to publish it. He did, on 9 November, four months later. In the event, by that point the policy was done and dusted.
The second area that we are very concerned about is that there is a statutory requirement for every regulation to be subject to a post-implementation review. In evidence to our committee, Christopher Carr of the Better Regulation Executive said that now only between 25% and 40% of regulations are so subject. Post-implementation reviews reveal what happened when hope and expectation met reality, and they surely have to be an important part of improving government performance and holding the Government to account.
Finally, and importantly, there appears to be absolutely no process for sanctioning Governments where their performance falls below what is statutorily required. Not only is this treating Parliament with disdain, but it is undermining confidence in the process of government more widely. As my noble friend Lord Blencathra said, providing opportunity for wider public scrutiny and challenge leads to not only better legislation but better accepted legislation.
So what needs to be done? It is no good just moaning on. There are two things the Government can do. First, they need to stop justifying the present procedures by claiming that this House has to approve all regulations. Technically that is true, but when the alternative is constitutional nuclear warfare, it is hardly a fair and open-minded decision. The Government should be more honest about this when they come to discuss these processes. Thy should also cease to claim that changing scrutiny legislation procedures would result in the whole work of government being gummed up. That is not right. Many aspects of the present procedure work perfectly adequately. What is needed is some form of triaging process to sort the sheep from the goats, the very important from the less important and the unimportant. About two-thirds of regulations that the SLSC examines are entirely technical. They are concerned with changing processes, upping fees or fines to reflect inflation and so on. There is no real concern as far as that goes.
Secondly, for the bulk of the remaining regulations, there needs to be a proper grip on process, the weakness of which I have talked about, so supporting documents and regulations are tabled in a timely manner and only in the most exceptional circumstances are regulations rushed through. That would have a sufficiently uplifting and effective result on this section to justify continuing with what we have at present.
Thirdly, for that small number of skeleton clauses, a new procedure needs to be developed. How might this work? I quote from the DPRRC guidance to Parliament:
“Skeleton legislation should only be used in the most exceptional circumstances. Where the government decides that such exceptional circumstances apply, the delegated powers memorandum should make an explicit declaration (“a skeleton legislation declaration”) that the bill is a skeleton bill or clauses within a Bill are skeleton causes.”
That should trigger a new scrutiny procedure to be agreed by the two Houses of Parliament, a process in which the House of Commons must play the leading role. As my noble friend said, this is not a Lords versus Commons issue and the Government must not be allowed to get away with that. This is about the legislature, the two Houses of Parliament and their powers vis-à-vis the Executive, the Government. For that new procedure to be effective, I have little doubt that there will need to be a power to amend.
We read frequently of a decline in confidence in our system of government to deliver effective, thought-through solutions. We are discussing today ways in which the system has been performing less well than it should. Within a few weeks, your Lordships’ House will begin proceedings on the Retained EU Law (Revocation and Reform) Bill, by any standards the grandfather of skeleton Bills and Henry VIII powers. If I judge matters aright, there is a mood in your Lordships’ House to see whether this Bill can provide a focus point to discuss the various suggestions for improvement in scrutiny that have been made. I very much hope that His Majesty’s loyal Opposition and my noble friend the Leader of the House on behalf of the Government will be able to respond constructively to these concerns.
My Lords, it is a great privilege to take part in this debate. It gives me an opportunity to pay tribute to the outstanding leadership of the noble Lords, Lord Blencathra and Lord Hodgson of Astley Abbotts, in bringing forward these reports. I also pay tribute to the clerks who deal with the scrutiny committees and have done tremendous service over the years, and I mention Christine Salmon Percival in this context. I am very much looking forward to hearing the maiden speech of my noble friend Lord Prentis of Leeds.
I should say that, although I do not know where I fit into the 500 years’ scope, I have had the privilege of serving twice on the DPRRC and the SLSC. It has been a privilege, and a grim experience of watching the erosion of parliamentary control over a number of years. It is not as if this House has been colluding in this process. We had the Strathclyde report and the way the House and the committees responded to it. We have had the work of the Constitution Committee on delegated legislation, and now the Hansard Society has taken up the cudgels on behalf of rebalancing the power of Parliament. I declare an interest as a member of that advisory committee, as is my noble friend Lady Taylor of Bolton, who cannot be with us.
These reports strike a very different note. They take the long view in both directions. They look at the evidence and recommend a profound shift in the always precarious relationship between Ministers and Parliament which we have witnessed. They make demands for change from the Government that go far beyond the usual admonitions that they should know better and act differently. The DPRRC has been adamant that there must be no less than a return to the first principle that legislation must be explicitly founded on and reflective of the principles of parliamentary democracy, not political expediency.
These reports are fluent in the language of the barricades. We have never heard before the language of diktat, of denial of democracy, or such a stark warning to Parliament itself of what we are facing. That presents us as parliamentarians with a real challenge. A reset is long overdue. As it is, our role in this House is largely to pull the Government back from the brink, but it has become increasingly difficult to do that. There are skeleton Bills, where no analysis or interrogation of impact is possible; policy-making is banished from the face of the primary legislation; outcomes are buried in delegated legislation; and Henry VIII powers are a routine convenience defended on spurious grounds with frivolous explanations. Added to that, as my noble friend—and I will call him my noble friend—has explained, disguised regulation has emerged, with ingenious devices, ingeniously defended. Directions and guidance are used as a proxy for legislation, and Parliament is an exasperated but essentially impotent onlooker. If Parliament cannot understand, interrogate or challenge perverse consequences, how can we protect people and communities from bad laws?
It is therefore all the more disappointing that the Government have accepted the easy stuff—14 recommendations, but none that change the culture or challenge Ministers. This attitude of “take it or leave it” has been well explained by the noble Lord, Lord Blencathra. Guidance is not going to enable or empower the junior civil servant to stand up to a Minister who wants to do something quickly and does not want the bother of parliamentary interference. Since that response a year ago, not only has nothing changed but things have got worse this year. We have had the chaos of the Schools Bill; the summary powers set out in the Northern Ireland Protocol Bill; the extraordinary powers under the Health and Social Care Bill; the landgrab of the levelling up Bill; and the extraordinary powers in the Retained EU Law (Revocation and Reform) Bill, to which we have already had reference, and all that that implies.
What is to be done if Parliament is to retain credit and purpose? I do not think Government will choose to do anything, other than perhaps to be aware of the danger of precedence. We have to take the initiative in this House as parliamentarians, and we are assisted in that in two ways. First, this is not a party-political issue; it affects both Houses, and it has arrested the attention of people outside this House who are concerned about the growing impotence of Parliament. The Hansard Society has made an excellent start in exploring how explicit principles for delegated legislation could be established, possibly by a new statutory instrument Act, for better processes to be created. We heard some of that—and that would inevitably, in my view, involve new procedures or avenues to involve the Government in thinking again. These might include stronger safeguards around legitimate claims of urgency and new joint processes for both Houses.
Parliament is in trouble. We need to be courageous and recognise the urgency of the situation we face.
My Lords, this is an extremely important debate and, as the Government by Diktat report says, we are talking about
“the principles of parliamentary democracy, namely parliamentary sovereignty, the rule of law and the accountability of government to Parliament”.
The report says:
“In recent years, the balance of power between Parliament and government has shifted significantly towards the government, a trend that has been accentuated by Brexit and the pandemic.”
I recall the noble Lord, Lord True, in his previous position, declaring that Boris Johnson was accountable as Prime Minister to the British people rather than to Parliament, as ratified by both the 2019 election and the Brexit referendum—popular democracy against the alleged elitism of parliamentary democracy. I hope that, now we are on our second Conservative Prime Minister who has not been immediately ratified by the British people, the Leader of the House, with his customary flexibility, will now return to arguing that it is parliamentary democracy that supports a Prime Minister and a Government, rather than popular democracy as such.
I am worried about the extent to which a number of current Ministers have preferred a sort of permanent campaign to recognising that the hard business of government is worrying about detail and difficult choices, and that the devil is very often in the detail. We have talked about the problem of skeleton Bills. The DPRRC report says
“the principal aspects of policy should be on the face of a bill and only its detailed implementation left to delegated legislation”.
Some of us have been dealing with the Procurement Bill in recent weeks. The beginning of Part 2 is headed “Principles and Objectives”, and it states:
“A Minister of the Crown may publish a statement setting out the Government’s strategic priorities in relation to procurement … Before publishing the national procurement policy statement, a Minister of the Crown must … carry out such consultation as the Minister considers appropriate”.
That is as good a definition of a skeleton Bill as one could find.
The National Security Bill, with which we are currently dealing in Committee, has an entire part—Part 3—introduced in Committee in the Commons without pre-legislative scrutiny or very much detail at all on how it is to be implemented. The Minister in last night’s debate assured me that one needs to implement the possibility of guarding against threats to Britain’s national interest as strongly as against the Netherlands, China, Iran and Russia. I think it requires a little further scrutiny than it has so far had. We have heard from others already about what we expect with the Retained EU Law (Revocation and Reform) Bill.
I am concerned, as I think many of us are, about the declining quality of legislation coming into this House. The proper legislative process should start where necessary, with complicated Bills, with pre-legislative scrutiny, a Green Paper, consultation with stakeholders and early publication of draft secondary legislation and guidance. That has not happened with too many Bills currently before the House. There should then be post-passage scrutiny of secondary legislation, carefully undertaken as it goes through—and, if necessary, that draft secondary legislation should be sent back. We have to grapple with that one.
The likelihood of a change of Government in less than two years’ time should surely concentrate the Government’s attention on proper parliamentary government and the need for effective opposition in challenging Government as they go forward. Perhaps we can expect again cries of electoral dictatorship from the Conservatives as soon as they are in opposition. It is the role of this House to work to ensure that legislation is workable and easy to understand. I was struck in Committee last night by the ranks on the Cross Benches who knew a great deal more about national security and the intelligence services saying they did not understand parts of the legislation as currently framed. Legislation has to be clear and, as it goes through, command public consent, sufficient consent to last beyond the next change of Government. That is the role of this House as a revising Chamber, and that is what we should defend.
My Lords, I think it is fairly safe to say that the term “delegated legislation” will never make the headlines in the popular press or cause stirs of excitement on social media. But the irony is that this can have such an impact on the individual citizen. We could see that during the Covid-19 regulations, which had such an impact on individual people.
I first became aware of the shortcomings of the system when I became a member of the Delegated Powers Committee, and subsequently its chairman. I congratulate my immediate successor on bringing forth this excellent and powerful report, most powerfully presented by my noble friend. I hope it will really become a turning point in this endless worry about the extension of government powers at the expense of Parliament.
My noble friend made many points and, in a short speech, I will make reference to only two. The first is the shortcoming, as I see it, of inappropriate wide powers in regulations. Departments will often say that they will interpret them in X or Y way, but that does not mean that the powers are not there when they have long gone and may be interpreted quite differently. They seem to have a touching faith in their immortality, which has no basis in fact.
I will give one example of something being used differently. Let us go back to 2015 and the infamous tax credits amendment regulations, which had powers to alter financial arrangements. I am sure they were intended to deal with issues such as the erosion of inflation on the values, but instead they were used to cut money out as a cost-saving exercise. In my view, that was a change of policy that required and demanded primary legislation. We all know what became of that and the furore that existed, but my point is clear: such regulations can be used in quite different ways by different Administrations.
I will also touch briefly on guidance, which my noble friend dealt with very clearly. One of my worries, in addition to it being disguised legislation, is that it has different meanings in different Acts of Parliament, which means that it is extremely difficult to give it a general meaning that is accepted. That makes for unclear legislation, which in itself is totally wrong.
What are we to do about this? Unfortunately, we are in the hands of the Government of the day as to how seriously they take these matters. My hope is that my noble friend will take on board seriously the various matters that have already been mentioned and the more that no doubt will be mentioned in this wide-ranging debate. I would like to feel that certain measures could be taken immediately.
First, let us deal with the Guide to Making Legislation. We have already seen the faults in that. As a former schoolteacher, I would like to put a stroke through it and say, “Not good enough—start again”. And start again with the useful points made in the report, which sets forth the principles before dealing with the actual issues. The other point is that, at that early level, where we are dealing with particular matters, we should see that ill-considered Bills are not let out of the Cabinet committee that is supposed to oversee their readiness. Too often that does not seem to be the case, and it certainly needs help. What is more, I believe that where regulations are going to be important, they should be ready in draft at the outset so that they can be considered by the various committees of the House when the occasion demands.
I turn briefly to statutory instruments, and thank my noble friend for his introduction. At the moment we have a system that is, in my vulgar parlance, “swallow it whole or spit it out”. I believe there should be a third way of dealing with this, by asking the Government to allow a House that is unhappy with a statutory instrument the chance to think again. I see that my time is up, so I will resume my seat.
My Lords, it is a pleasure to follow the noble Baroness, Lady Fookes, and I am glad she was not my teacher. I declare an interest as a current member of the Delegated Powers and Regulatory Reform Committee and a former member of the Secondary Legislation Scrutiny Committee. I too pay tribute to the staff of these two committees, who provide incredible support, week in, week out.
These two hard-hitting reports highlight the continuing and growing misuse of secondary legislation through unnecessary Henry VIII powers, skeleton Bills, and disguised and tertiary legislation. Together, they express real disquiet about what is going on. This is not surprising. As the titles of the two reports suggest, the concern about secondary legislation scrutiny goes to the very heart of the balance of power between Parliament and the Executive.
This is of major constitutional significance and, as we have heard, it has real, practical consequences. Effective scrutiny makes better law, but secondary legislation is not subject to effective scrutiny because, to be effective, scrutiny ultimately entails an ability to amend or at least to think again. This lack of effective scrutiny is the essence of the problem addressed by these two reports.
Of course, it is easy to see why nothing gets done. Parliamentary time is in short supply, the wider constitutional agenda is pretty full, and secondary legislation is seen as something for constitutional technicians. But above all, turkeys do not vote for Christmas, and Ministers are not going to fall over themselves to limit their own powers.
Let me try to remind the Minister why he might urge his colleagues to take a longer view. First, the current situation is a muddle and inherently unstable. Few understand the present complicated range of scrutiny processes and procedures, and the present all-or-nothing approach rests on a potentially fragile understanding, challenged in the past, that the Lords does not vote down secondary legislation. Secondly, the problem will not go away. Brexit and Covid have highlighted the problem, while the temptation to produce more and more contentious Bills seems insatiable. There is wide and growing concern, and not just in this Chamber. Thirdly, and most importantly, the issue is above all about public trust in our democratic system. As others in this Chamber so effectively remind us, we do well to recall the importance through history of the balance of power between Parliament and the Executive. We only have to look across the Atlantic to remind ourselves of the apparent fragility of even the strong democratic systems in a world of populism and social media.
What should the Government do? The very minimum would be to look again at the suggestions in these two excellent reports to make the existing procedures work more effectively. The government responses were disappointing and, in my view, short-sighted. I ask the Minister to spell out in detail why skeleton Bill declarations, a scrutiny reserve or more rigorous avoidance of disguised and tertiary legislation should not be pursued.
Beyond this, I urge the Government to review the whole question of how best to scrutinise secondary legislation, including the power to amend or think again. I suggest using as a starting point the current Hansard Society review, which is about to issue its preliminary findings. With his long experience of constitutional matters, the Minister is well placed to take a lead on this, perhaps by setting up a Joint Committee of the Lords and the Commons to consider a new secondary legislation Bill. Effective Commons engagement is crucial, despite the Strathclyde review on the balance of power between Parliament and the Executive—and not Lords versus Commons, as has already been pointed out.
This is a fundamental constitutional issue, with practical consequences for every citizen in the land. The present system is a mess and crying out for reform. It is surely time to act.
My Lords, as has already been noted by other speakers in this debate, delegated legislation is indeed a necessary part of the process, but I echo the concerns about the increasing use of skeleton legislation, Henry VIII powers, disguised legislation and tertiary legislation. I support these two excellent reports that look at how we might limit the use of delegated legislation and address the culture that is now taking it for granted. Both committees highlighted very valid concern about the transfer of power from Parliament, with clear democratic oversight and public scrutiny, to instead ruling by Executive edict.
The past few years have been turbulent times, although probably if anybody looked back over any decade in the life of this nation they would see that there have always been turbulent things happening. Therefore, I guess it is easy to understand why the Executive may need to respond in unusual and challenging circumstances with delegated authority. However, it is absolutely crucial that this is done sparingly and in a transparent manner. The Government’s response to the pandemic is the classic example of this. Of course, there are times when a national emergency will demand that we fast-track legislation, or grant broad delegated powers, but those should be exceptional and rare cases. The Government must always recognise the importance and value of parliamentary scrutiny. What is concerning, as is brilliantly highlighted in these reports, is that the Government’s widening use of delegated legislation is not limited to emergencies but is now being used routinely.
We were promised by this Government that we would “take back control” by putting power back into the hands of the British people through Brexit, but it looks as though the opposite is in fact happening. The DPRRC report has described Brexit-related Bills as some of the “starkest examples” of disguised legislation. A year ago, the noble Lord, Lord Lisvane, who is speaking later in the debate, summed it up perfectly when he said:
“The real losers are our citizens.”—[Official Report, 6/1/22; col. 780.]
It is for them that we are standing here today, to appropriately scrutinise the laws that affect their daily lives. To take this away from them is to do all of us a great disservice.
His Majesty’s Government would be advised to think very carefully about the use of skeleton Bills, Henry VIII powers and so on, as they will have no grounds for complaining if a future Government of another political persuasion use the very same powers. If this becomes the norm, any Government will take it for granted that they can ignore scrutiny by Parliament. As a minimum, we need policies that have the support of both Houses and all parties and clear principles on what needs primary legislation and what can, in exceptional circumstances, be dealt with by delegated legislation. We also need to agree on more effective ways for Parliament to scrutinise things such as statutory instruments.
Parliamentary scrutiny is one of the core constitutional functions, and the Government need to have a willingness to be scrutinised, particularly on any matter relating to the rights of the individual: their privacy, security and right to speak or assemble. So, from these Benches, I reiterate our support for the recommendations of these reports and some of the interesting material that is now being produced by the Hansard Society—which we will need to look at when we have, I hope, more time and leisure—and express my grave concerns about the shifting balance of power from Parliament to the Executive.
My Lords, it was my very good fortune to have served for four years, under the noble Lord’s chairmanship, on the Delegated Powers Committee. It is currently my good fortune to be serving on the Secondary Legislation Scrutiny Committee under the chairmanship of the noble Lord, Lord Hodgson. As the noble Lord reminded me, I have been here rather a long time; I have seen some dozen Prime Ministers come and go. Throughout that period, the one thing has driven me—and I think it has driven all Members of this House and the other—is the profound belief that parliamentary legislative scrutiny is vital to the whole issue of parliamentary democracy. It is an essential, integral cornerstone of our constitution.
The Delegated Powers Committee report is a very fine one. First, it is rooted in detailed research, and for that we must pay tribute to the staff who advised us. It is a very finely researched report. Secondly, it all draws upon something like two decades of experience that the Delegated Powers Committee has. I recommend that Members of the House look at Appendix 3 of the report, which lists more than 30 Bills that the committee has reported upon, drawing attention to what it considers to be inappropriate delegated legislation. The findings and recommendations of this report are rooted in the experience we have had, over nearly two decades, in scrutinising delegated legislation. Therefore, the findings of report are, in my opinion, irrefutable.
There has been a growing and dangerous development: the increasing use of delegated powers legislation, such as skeleton Bills; Henry VIII powers; the new devices the report describes in detail; mandatory guidance, which is a quasi-form of legislation; and, of course, most obnoxious of all, tertiary legislation. The House might remind itself what tertiary legislation allows a Minister to do. It allows a Minister to give power to unelected bodies, such as a quango, to amend or repeal an Act of Parliament—after all the efforts both Houses make, power can be granted to an unelected body to repeal or amend. That cannot be justified in any sense.
Unfortunately, I think the quality of this report was not met by the initial response of Ministers in their letter of 2 January last year. The letter was signed by the then Lord President of the Council and Leader of the House, the right honourable Jacob Rees-Mogg. Unfortunately, in the very first line of this letter he thanks the committee for its letter dated 23 November 2021 and copy of the SLSC’s report entitled Democracy Denied? He got the wrong committee: it was the Delegated Powers Committee that submitted this report, not the Secondary Legislation Scrutiny Committee. That shows some of the character of the response we had and it seemed hopelessly inadequate.
I hope now, with a new Front Bench and a new set of Ministers, that we will have a much better and much more reasoned approach to the issues, and these very useful and not excessive recommendations. They are practical, useful recommendations that will allow this House and the other House to fulfil their fundamental role of scrutinising legislation. As we say in pages 4 and 5 of our report, this is not an “esoteric constitutional” issue but:
“The way our laws are made can have a profound effect upon the lives of millions of citizens … parliamentary scrutiny is a cornerstone of parliamentary democracy … As our historic account of delegated legislation shows, there have been times when the government of the day have been impatient of parliamentary legislative constraints. … But Parliament rightly demands patience in fulfilling its most important role—the making of our laws”,
because that is in fundamental to the whole nature of our parliamentary democracy.
I invite the Minister, when he replies, to take a new look. I hope he will come to the Dispatch Box with a better response than we received a year ago from the previous Lord President. I ask my own Front Bench to endorse, in the strongest possible way, the powerful recommendations in the Delegated Powers Committee’s report.
My Lords, it is an honour to speak in this important debate. I thank noble Lords from across the House for having been so welcoming to me over the last few weeks. I especially thank my noble friend Lady McIntosh of Hudnall, who is sitting next to me; she is not my mentor but probably my carer. I also thank my noble friend Lady Wheeler, of Blackfriars, and my noble friend Lord Lennie, of Longsands, for introducing me to this House. We go back such a long way, and I thank them for their friendship, support and wise counsel. I also thank the doorkeepers, the police and all of the staff, who have been so professional and patient with me; they are public servants at their very best.
Like many Peers before me, I am proud to hail from the city of Leeds, or, to be more precise, from the streets of inner-city Leeds, a close-knit working-class community, with neighbours living from day to day, working hard but still struggling—yet kind, warm, considerate and putting their families first. Apart from a few political scandals, now recorded for posterity by Netflix, they have a grudging healthy respect for our democratic institutions.
At that time, there was an education system centred on the grammar school. I was one of the fortunate few: I passed my 11-plus. I spent eight years at a grammar school, followed by a degree in history from London University and a master’s in industrial relations at Warwick, and my future was set. In weeks, I was with the public service union NALGO, which, in the 1990s, merged with NUPE and COHSE to create a new, progressive and democratic union, UNISON, with over 1.3 million public service workers and over 1 million women, so many of whom are low-paid, working part-time and without a voice. I have been part of that union for over 45 years, and it has been an honour and privilege to serve its members as their elected general secretary for the past 20 years, and to be their voice, sometimes successfully and sometimes not, with Governments of every political persuasion, from Margaret Thatcher to new Labour and the Governments of more recent Prime Ministers—far too many to mention. I think of those public service workers today, as we take part in this debate. They are the very people whom we applauded during the pandemic.
Obviously, I stand in awe of the overwhelming parliamentary experience of the eminent noble Lords who produced the two reports before us today; I can only add weight to their call to rebalance our Westminster Parliament. But I come at this from a different perspective because, until only a few weeks ago, I was on the outside, looking in. Like many others, I have seen the growing public distrust of our parliamentary systems, not only in the devolved nations but across the UK. The reasons are complex, but we ignore at our peril the extent to which a democratic deficit can call into question the institution itself.
I accept that worry about the increasing use of SIs is not discussed in hospital wards or council canteens. It will not be discussed in the supermarket, in the pub or around the kitchen table, especially while more people are once again struggling. So why does it matter? It matters because the growing trend of Ministers avoiding parliamentary scrutiny calls into question trust and confidence in the whole institution. It matters because, from my long experience on the Court of the Bank of England and other public bodies, I know that confidence in the economy is inseparably intertwined with confidence in our democratic traditions. It matters because skeleton legislation really could lead to government by diktat, with little place for scrutiny, oversight and improvement, which are the very hallmarks of this House. It matters because it affects our reputation across the globe, as the beacon of democracy. I know this all too well, as president of Public Services International, the recognised world body representing public service workers.
Our reputation is waning. The issues raised in these reports are important, and they speak to a possible deeper malaise in, and distrust of, our political system. Our democratic institutions and our processes matter, which is why I support the recommendations in both reports. I look forward to playing my part in taking those recommendations forward.
My Lords, it is a great pleasure to follow the maiden speech of my noble friend, who has been involved in the trade union movement all of his working life, as he said. He has had significant achievements within that career. I first knew of him when he was working on the merger, which he talked about, of very different public sector unions: NUPE, COHSE and NALGO. He subsequently became the general secretary of the merged union, UNISON. I know how difficult weaving together those different cultures, traditions and interests was and still is. To have maintained the confidence of those members for 20 years, as general secretary, is no mean feat. He championed the cause of those working across the public sector, but he never forgot the particular challenge facing low-paid women, ensuring training and support for career progression for very many of them. As general secretary, he oversaw several successful equal pay claims, which have been transformative for all women, whatever workforce they are in. So I am delighted that he has joined these Benches.
My noble friend could not have arrived at a more propitious moment. The future of public services absolutely is dependent on their workforce, and no one is better placed than he to understand the elements of a well-functioning, motivated and, yes, productive workforce. We would all do well to listen to what he has to say and to work with him to deliver those public services from their current crisis into what the public have the right to expect. His outstanding speech today gives us some idea of what we can expect and what we should be working on.
I come to the subject of this debate. I thank the noble Lords, Lord Hodgson and Lord Blencathra, for two outstanding reports, which were published at a particularly challenging time for democracy. They and other members are right that much of this will often be described as boring, technical and so on. However, these reports show just how wrong we are when that is what we think about these committees. They go to the heart of the rationale for much of Parliament’s work, and they are searing in their critique of the creeping imbalance between Parliament and the Executives, and the dangers of that.
I am not a member of either committee, so I hope I am allowed to stretch a bit further. The problem is exacerbated because the reports were published at a time when it seemed almost fashionable to question the institutions that traditionally hold up democracy. These institutions are part of the proper balance of power, holding the Executive to account. Of course, prime among those is Parliament, but we in this House lost good Ministers, who had responsibility for how the rule of law was exercised through the criminal justice system, because of their concerns around all of this. Parliament was prorogued because the Executive felt that they could not get their own way, and civil society—another important institution for holding the Executive to account—has too often been criticised for speaking truth to power.
We have seen in other countries how democratically elected leaders have questioned opposition and the very process of elections. That means that we have to recognise the fragility of democracy. We have a responsibility not just to defend parliamentary democracy but to strengthen it in this country.
Having listened to the previous speeches, I am reluctant to blame civil servants, parliamentary counsel, clerks and whoever else works with us when we are in government for all this, because at the end of the day it is politicians’ responsibility. We are responsible and we must be accountable. I remember that, when I first became Chief Whip, the principal private secretary said to me, “I work for you 51% of the time, and I work for the other parties 49% of the time”, reminding me that, in a parliamentary democracy, opposition and different views are important, and we must reflect them.
I wanted to make two other points, but my time has come to an end. We must find ways to strengthen pre-legislative and post-legislative scrutiny, and this House is particularly well placed to do that. I hope we can think about changing how we do things here with the Government to improve post-legislative, pre-legislative and legislative scrutiny. We owe that to the public we seek to serve. Unless we take that very seriously, parliamentary democracy will continue to be under threat.
My Lords, I have a simple question to add to this excellent debate: are we set up, as a Parliament of two Houses, to achieve increased parliamentary scrutiny of the ever-swelling activities and plans of the modern Executive? We all want to see that and are all striving to find ways to do so, as the noble Baroness has just reminded us.
In putting that question forward, I will use not my own words but those of my noble friend Lord Hill of Oareford, a former Leader of the House. On Tuesday, he asked
“does a session in front of the Treasury Select Committee amount to proper accountability? Is the TSC properly set up and resourced to provide proper scrutiny? Clearly, the answer to both questions is no.”—[Official Report, 10/1/23; col. 1346.]
My answer is also no. In fact, I extend that to most of our hard-working departmental committees, all working under present limitations as they are. If we want proper evaluation of the stream of statutory instruments, many of which are highly technical, we must recognise that that stream is bound to increase as regulation, the powers of regulators and things such as complex trade agreements become ever more fast-changing and require more rapid responses.
In the 1970s, some of us took the decision that Parliament, as it then operated, could no longer call the Government to account effectively or really examine their swelling powers—that was 50 years ago. After a prolonged debate and some experiment, the Select Committee system for each department that we have today was set up and the old, weak Estimates Committee system was swept away. That innovation, agreed by all sides in Parliament and fully supported by the Executive, of which I then happened to be a part, has done extremely well over 40 years and helped shed new light on—and, in some cases, sharply limited—the expanding executive activity and acquisition of powers which is going on all the time and worries us so much. However, in the digital age of far greater executive power and control which has come about since then—everything shifting and evolving ever faster—the parliamentary system of scrutiny, of both legislation and executive programmes, clearly needs further strengthening in many ways. My belief is that, to match that greater spread and depth of complexity, we need a far stronger committee system in both Houses.
The Hansard Society rightly questions whether our clumsy and antique system of negative and affirmative procedures—we have all lived through endless examples of those—really work any more. Do they have any teeth? My instinct is they do not. The Hansard Society also wants a sifting committee to decide which SIs should really be scrutinised in depth. I can see what it is thinking, but that really misses the point: the sheer complexity of government and the need to move ever faster to keep up, especially on the regulatory and trade fronts, requires much more specialised focus to sift those instruments effectively than anything that can be provided by one single committee.
Trade agreements are living and changing processes; they cannot be fixed arrangements nowadays. We need all departmental committees to have the resources and powers to go in depth into those matters because, in the modern conditions of the digital age, that is what is necessary. To plunge deeply and effectively into the executive powers being sought, establishing whether they should have proper scrutiny and of what kind, requires the sort of intense questioning from many sides that only a very well-resourced committee with real powers and good relations with the media and public can deliver. Our committees are underresourced for the modern age and underpowered, compared with the committees of any other Parliaments.
In my last few seconds, I add the reflection that the first power needed is one which most committees in most other free Parliaments in most other countries have: some control over the legislative agenda. To the best of my knowledge, we at Westminster, supposedly the mother of Parliaments, are almost the only Parliament in which the legislative agenda and programme is left almost entirely under strong executive control. That too should change.
My Lords, looking at these two excellent reports, I must confess to a feeling of helplessness. The phenomenon which the two committees analyse so tellingly is a familiar one and was most effectively criticised in the splendidly excoriating contributions of the chairmen of the two committees earlier in the debate. I declare that I am a former member of the Delegated Powers Committee and am about to come to the end of my term on the SLSC.
For many years now, the boundary between primary and secondary legislation has been moving steadily upwards, with matters of policy and principle, as has been said by many noble Lords, being increasingly included in secondary legislation, with commensurately low levels of parliamentary scrutiny. There are attendant risks: just look at what happened with the tax credits SI, which was an entirely self-inflicted wound. At the same time, the powers which Parliament is asked to grant Ministers to exercise, with little scrutiny, grow ever more extensive. We have the baneful Henry VIII powers, on which the noble and learned Lord the Convenor has waged unremitting war for some time but, I hope he will not mind my saying, without inflicting significant casualties. Those are bad enough, but when Ministers are given the power to amend not only any statute passed at any time but even the statute resulting from the very Bill under consideration, one must ask what value is to be placed on the legislative process as a whole.
Distinct from Henry VIII powers are the sweeping powers given to Ministers for barely specified purposes. As the reports point out, this means that, when the enabling legislation is passed, our fellow citizens may have little idea of what the law affecting them may eventually look like. I am extremely grateful to the right reverend Prelate for his reference to that earlier in the debate.
It is common ground that your Lordships’ House leads the way in the exacting process of scrutinising secondary legislation, and I am sure that I am not alone in finding it ironic that this House, so often the subject of naive proposals for reform, is so far ahead of the elected House in seeking to protect the interests of citizens in this way.
This afternoon, our focus is on secondary legislation, but I fear that this is symbolic of a deeper malaise in the legislative process as a whole. A previous Prime Minister used to describe proposals as “oven-ready”, but what we have to deal with is the half-baked. Even allowing for the chaotic uncertainties of the last couple of years, this is not acceptable.
Take the development of policy, for example. What happened—and this was well mentioned earlier—to the idea of Green Papers, followed by White Papers, followed by legislation? The former Leader of the House of Commons rather gave the game away in his letter of 24 January to the chairmen of the two committees, in which he said that
“there will invariably be times when greater flexibility may be needed when legislating, for example as part of an emerging policy response.”
No; legislate when you have agreed the policy, not before. Do not rely on delegated powers to rewrite—or write—the bits of the Bill that could not be settled before introduction. Do not try to solve business management problems by bolting together proposals which should be separate Bills. The Levelling-up and Regeneration Bill is a current and indeed fairly dreadful example of the species. Try and plan for more Bills in draft—they will save you trouble in the long run and, incidentally, they can be a sensible way of settling on appropriate delegated powers.
On secondary legislation, it is frustrating that the Government could, if they wished, change things fundamentally as a matter of good practice. But, at the moment, we seem to be told that this is the way that things are done, rather than the more important question being answered of whether it is the way that things should be done.
I commend the work of the Hansard Society and declare to your Lordships that I am a member of its advisory panel. I hope that, when it reports, the Government will approach its recommendations in a positive and collaborative spirit.
Let us not deceive ourselves: delegated legislation is a real problem area, but it is not the only one. The legislative process as a whole needs a fundamental overhaul, but that would take a lot more than my five minutes—which I have already exceeded.
My Lords, I have the unenviable task of following the noble Lord, Lord Lisvane, who is probably one of the most knowledgeable Peers in this House on procedure. It is always a pleasure, and with trepidation I will attempt to do so.
I joined this House in November 2014, and in 2015 I was appointed to my first committee, the Secondary Legislation Scrutiny Committee. After three years, I moved to the Delegated Powers and Regulatory Reform Committee, and next week, after a further three years, I will have my final meeting. With some trepidation, I wonder what my noble friend Lord Newby has in store for me next.
I say from the beginning that this is not a fight between this House and the other place. The crux of the debate today should be around the relationship between the Executive and Parliament. The pendulum swings one way and swings the other way, and it would seem from the flavour of the debate, and clearly from the reports, that the pendulum has swung predominantly towards the Executive. I am not saying that we do not need secondary legislation—in some circumstances it is necessary—but Parliament has at least a right to understand what powers are being delegated and for what purpose. Too many times the Executive ask for Henry VIII powers and skeleton Bills, usually in the “national interest” or a general emergency.
I remember a Zoom meeting that our Delegated Powers Committee had with Jacob Rees-Mogg during the pandemic. He was at home in his study, with tapestries and oak beams. It looked a bit like a grade 2 listed—the building, not Jacob Rees-Mogg. He was extremely supportive of this House and its scrutiny process. He said in correspondence following that meeting that skeleton Bills
“should not be used as a tool to cover for imperfect policy development”.
Perhaps the committees should ask for another meeting with Jacob Rees-Mogg to refresh their memories.
There is a Bill in the other place, on its way to this House—the Retained EU Law (Revocation and Reform) Bill. Let me say at the outset that this is nothing to do with Brexit. This is about Parliament understanding what powers the Executive will be seeking to achieve through secondary legislation. That Bill is riddled; it is a walking skeleton coming this way. The principle and reasons for any delegated powers should be at the front and centre of the Bill. As they say up north, it should say on the tin what is in the tin. If you buy a tin of peas and open it and it is full of carrots, I think you would feel cheated.
The other problem is that, once delegated powers are agreed, it is very difficult to remove them. Once the Bill is enacted, Ministers can act with impunity—rightfully so when they enact the Bill; that is their business. But the Bill should be right before it is enacted.
When that Bill comes to this House, I will be gone from any committee that will consider it, but I am certain, following six years sitting on legislation committees, that delegated powers will be writ large throughout it. We must remember that, once given up, these powers cannot be reversed easily. They are precious and protect our freedoms, and the Executive must understand that Parliament is ultimately sovereign and will seek to protect those freedoms at all costs.
My Lords, this is our second shot at these excellent reports; we had a go almost exactly a year ago. It seems to me that our analysis of what flows from the extensive work that has been done has sharpened up. I find it quite difficult to know what to say after the speech from the noble Lord, Lord Lisvane, with which I agreed 100%. Indeed, just before him, my noble friend Lord Howell also referred—and it is a good title—to the study of the legislative agenda. I think that that is where we have to be.
This is a very good prelude, but secondary legislation comes attached to and after primary legislation, and at the moment it is quite difficult to see how we will make much progress as the boundaries between primary and secondary legislation have, in my view, completely gone. They simply do not exist in the way that we understood them to exist.
When I think of the two Motions, I am not so sure about the Delegated Powers one, because it uses the word “power”. To me, that is not the right subject. The right subject is housekeeping. Are our Government and our Parliament conducting the housekeeping of our nation’s affairs in a proper manner? How much real power do they have to direct that housekeeping? I think it is better to think about it so there is not a great deal.
I want to make a point about the report from what I used to call the Merits Committee when I was on it. It refers to the efforts and the explanation of the efforts that the draftsmen have put into a piece of legislation and says that if, at the end of those efforts, the policy is not clear, the Bill must be “premature”. I would go further. There is always a possibility that the Bill was not necessary in the first place. What was the motive for putting it forward? Recently, the freedom of speech in universities Bill would be a good example of that.
When it comes to thinking about, for example, framework Bills and what the Merits Committee has said about the possibility that the legislation is not necessary, that is the end of the Environment Act. It is a catalogue of regulations and targets. As far as I can see, there is absolutely no way of evaluating how that Act is performing, because you will always get an answer back saying, “Well, as you know, most of it is to be done tomorrow and we’ll tell you in due process time”.
We have to then give one minute’s thought to the position of the Government. I think they might say, “We are having a very difficult time meeting democratic expectations if we are to be re-elected”. There are difficulties: climate change, biodiversity loss, freedom of speech issues, trans issues, mental health problems among teenagers, gambling addiction. Does any of us really think that we know how we would draft primary legislation to deal with this? Do we even think that, in all cases, primary legislation would be the relevant way of trying to cope with some of these issues?
I have one last thing to say. Please do not blame the parliamentary draftsmen. I think that if we were working with them, we would make exactly the same comments as we make about the staff of our own committees. I suspect that we are out of our depth, and that we need to find a way back to competent housekeeping.
My Lords, although he is no longer here, I would like to congratulate my noble friend Lord Prentis of Leeds on his maiden speech. He is going to be a powerful addition to this House, not least on behalf of the low-paid workers who he has represented so well over the last decades. I would like also to congratulate the two chairs who introduced this debate. I agreed with 98% of what the noble Lord, Lord Blencathra, said in his excellent speech—it is a very rare thing for me to agree with the noble Lord but I did agree with him. I congratulate the noble Lord, Lord Hodgson of Astley Abbotts, on his excellent speech. I served briefly under his chairmanship of the Secondary Legislation Scrutiny Committee, and it was admirable.
The issues being raised today are fundamental. In simple terms, they go to the question of whether we live in an “elective dictatorship”, as the noble Viscount, Lord Hailsham, claimed fifty years ago, or in a parliamentary democracy where Parliament is truly sovereign. The issues are as important as that, and they are increasingly urgent and compelling.
On Tuesday, we debated the Second Reading of the Financial Services and Markets Bill. Unfortunately, I was not able to speak in that debate, but the noble Lord, Lord Hodgson, made the very good point that the Bill itself does not give us any indication of the fundamental policy changes that are going to be made as a result of it. It empowers those changes to be made but it does not tell us what they are going to be. This is fundamental. It is about whether we avert another 2008 banking crisis; how we regulate so that the work of the City, which in many respects is excellent, works for the growth of the whole economy; and many other fundamental questions. But many of these will be decided by the delegated legislation which the Bill empowers, not by the terms of the Bill itself.
Other noble Lords have mentioned the Bill coming forward on the repeal of retained EU law. It takes sweeping powers that will affect a wide range of subjects: the environment, the rural economy, social rights, consumer protection—all these things are potentially going to be revised by delegated legislation.
How do we deal with this? First, I would like to see Bills examined by specialist committees set up by this House, where we would have the power to call expert witnesses and propose amendments to delegated legislation. Secondly, I would like us to examine the convention in this House that we do not vote against delegated legislation. It seems to me that we have to have a mechanism whereby we can propose amendments to regulations. If the Government reject them ultimately, the House will obviously give way to the views of the Commons, but we ought to have the ability to do that.
When I suggested this to some of my colleagues, I was told by a very distinguished former Chief Whip of this House that it would threaten the viability of the next Labour Government—we can all guess who that was. I think he is wrong for two reasons. First, we need to fundamentally improve the way we make policy in this country. There needs to be more consultation and cross-party consensus. We need legislation that is actually going to last and make fundamental change. Secondly, if we are serious about the role of this House as a revising Chamber, how can we say that we are not going to concern ourselves with these crucial policy questions which are now going to be decided by delegated legislation?
I hope that the Government and the usual channels will consider these questions urgently. There are difficult trade-offs to be made, but we cannot allow the status quo to continue to exist.
My Lords, I express my profound gratitude to the noble Lords, Lord Blencathra and Lord Hodgson, and their respective committees for producing these two very important reports; they have done us a great service. I was so heartened by these reports that I was moved to speak today to support the excellent work they have done. I probably will not say anything new as so many points have already been made, but they are worth repeating or emphasising.
These reports, as we have heard, raise fundamental constitutional issues about our parliamentary democracy, the relationship between the Executive and Parliament, and the urgency of resetting the balance between Parliament and the Executive. They remind us that we are a parliamentary democracy and not a populist democracy. The Secondary Legislation Scrutiny Committee issued a stark warning that the balance of power between Parliament and Government has for some time been shifting away from Parliament, a trend accelerated by Brexit and Covid; it recommends that the balance be reset and not just restored to how it was before these exceptional recent events.
Both the committees were so concerned that they recommended regular House of Lords debates and monitoring, which I hope will happen. The gravity of their disquiet is palpable in these reports but, despite that, the Government’s response has been disappointing. Although some of the recommendations have been accepted, the Government’s response, I regret, did not illustrate much appreciation of the fundamental issues raised or the urgency of resetting the balance. That was so much the case that, in their subsequent reports, both committees stated that the examination of Bills introduced after their initial reports were published reinforced their findings.
I hope that the well thought-through recommendations of these reports will not be ignored or watered down, and that the work done by the Hansard Society with the involvement of Members of this House will also be taken seriously. I strongly agree with the recommendation that, in resetting this balance, what needs to be reinforced by the Government is that primary legislation and powers conferred by it should be drafted on the basis of the principles of parliamentary democracy, and that the threshold between primary and delegated legislation should be founded on the principal aspects of policy which should be on the face of the Bill, and only its detailed implementation left to delegation.
There are three further comments which I would like to make: the first is about Henry VIII powers. While I agree with points made by the noble Lord, Lord Blencathra, it is worth repeating the point made by the noble and learned Lord, Lord Judge, in his excellent lecture in 2016:
“Save in a national emergency, only statute can repeal, suspend, amend or dispense with statute.”
The second issue is about the culture of Whitehall, which is not just the “Whitehall culture”; it is also about the leadership provided by political leaders. Parliament is seen as an irritant, a constraint which delays or obstructs business; the “getting business done” mentality, and seeing due democratic process as a nuisance, encourages inappropriate use of delegated powers. Guidance and manuals are important, but equally important is the understanding and appreciation of the fundamental principles of parliamentary democracy, which I fear is lacking.
As the noble Lord, Lord Blencathra, said, parliamentary scrutiny matters. The making of laws affects citizens—their rights, their well-being, and their liberties. Our democracy is fraying at the edges, constant vigilance is necessary, and we have to safeguard every component of our uncodified constitution to ensure that there is no erosion or weakening of our democracy. We pride in promoting and teaching other countries about parliamentary democracy. If we behave in questionable ways it undermines our moral authority and international influence, which needless to say has much wider implications. Creating a culture where the fundamentals of parliamentary democracy are important is crucial.
My final point is about pre-legislative scrutiny, which I strongly support; I was pleased to see it highlighted in these reports. Although it is not mentioned in these reports, we should do more post-legislative scrutiny work too. In 2006 the Law Commission produced an excellent report on the subject and the then Government introduced post-legislative scrutiny. This House is ideally equipped for this work. I was pleased to be a member of a recent post-legislative scrutiny Select Committee which examined the Children and Families Act 2014 and highlighted areas where lessons could be learned; that experience has convinced me even more of how significant this area of work is.
I look forward to a positive and constructive response from the Minister.
My Lords, I too welcome both excellent reports. My starting point is that good law is a public good, most law emanates from the Executive, and Parliament’s role is to ensure that the legislation that they bring forward is justified and as well drafted as it can be. We need therefore to have in place the means to scrutinise and influence legislation, be it primary or secondary; the need to ensure secondary legislation is scrutinised effectively is well made in the reports before us.
We have the means of scrutiny but we do not follow through in influencing the Executive. That is the problem, and I argue that there are two reasons for it. One is well identified in the reports before us—it is the attitude of the Executive—and the other is to be found in this House. On the first, as the Delegated Powers and Regulatory Reform Committee makes abundantly clear, the culture of the Executive is to see the delegation of legislative powers as a matter of political expediency. Ministers and officials have got so used to the convenience of employing delegated legislation that they not only neglect the fundamental principles detailed in the committee’s report but exhibit at times a rather lazy attitude to drafting. It is part and parcel of a wider attitude to Parliament, one borne in part of ignorance of Parliament.
The government response commits to the inclusion in the Guide to Making Legislation of the principles adumbrated in the committee’s report in order
“to remind departments, both ministers and officials and also the PBL Committee, of the constitutional principles underlying the relationship between Parliament and the executive.”
But why do they need reminding of something that should be ingrained as part of their culture? What is in the Government’s response is not so much a concession as an admission of a failure to comply with the provisions of Section 3(6) of the Constitutional Reform and Governance Act 2010. In replying, could my noble friend the Leader of the House explain what other steps are being taken to ensure compliance with this statutory duty?
I turn to the second part of my thesis: namely, that part of the reason lies with this House. The committees produce valuable reports, but they are toothless if the House itself is not prepared to act. There is little point giving a committee the power to bark if the House is not prepared to bite. As the noble Lord, Lord Butler of Brockwell, said in Tuesday’s Second Reading debate on the Financial Services and Markets Bill, Parliament’s reluctance to reject SIs makes such power “purely nominal”. When an SI comes before the House, we debate it but then agree to it. A regret Motion may be passed, but that constitutes an expression of opinion—one that, as far as I am aware, is invariably ignored.
A Motion to reject an SI is deemed a fatal Motion. It benefits the Executive to use such language; it is misleading. Rejecting an SI is not akin to rejecting on Second Reading a Bill that comes from the Commons. Voting down a Bill kills it for the rest of the Session; voting down an SI kills it until the next day. The Government can simply re-lay it with the odd word changed. If we were to keep rejecting it, that might be a different matter, but simply voting down an SI when first laid is akin not to rejecting a Bill but to passing an amendment and inviting the Commons to think again. Rejecting an SI is to invite the Government to think again, which they can do and, if necessary, submit a fresh SI, accepting the points made by the House. Despite what some have claimed, there is no convention that we do not reject SIs. The House has asserted its right to reject SIs and on rare occasions has done so.
We will be effective in our work in respect of delegated legislation only if we have the political will to act. We have the power. We owe it to the two committees that have reported to be willing to exercise it.
My Lords, I wish I could say that it is a pleasure to take part in this debate. In a way, because of the nature of the subject and where we are, it is not—but it is a very necessary debate. It is a pleasure to follow the noble Lord, Lord Norton of Louth, who has great expertise in this area. The House owes a great deal to him and to many others with knowledge far greater than mine. I congratulate the two chairs of the committees concerned on the way in which they produced the reports and introduced them. I also congratulate my noble friend Lord Prentis of Leeds, who is not in his place, on his excellent maiden speech. I am sure he will play a very big part in the life of this House. His analysis of the loss of public trust in institutions is very pertinent.
When I reflected on the number of names down to speak in this debate, I found myself in agreement with the noble Lord, Lord Blencathra, who said earlier that it was a surprise—I took it as an encouragement. Today’s debate is just another example of the underlying issue of how we are governed. I personally think that this is the real importance of today’s debate, and the real importance of the subject. I am one of those who takes the view that the way in which we are governed is not good enough, and the content of these two reports well illustrates some of the problems. The more Members who take an interest in this the better, because something is going wrong. The balance of power between the Executive and the legislature has for some time been changing, to the detriment of the legislature—both this House and another place. The two reports help to explain how.
Both reports are excellent. I commend the Members, clerks and staff for producing them. I am tempted to say that these are also two excellent examples of titles of reports. When I first saw them laid out in the Royal Gallery over a year ago, I thought here are two committee reports that pull no punches. I am sorry that it has taken quite so long for us to debate them. However, that is a refrain that I have often heard in the short time in which I have been here.
The reports paint a picture of the erosion of parliamentary supremacy. Their analysis is broadly correct. When I ask myself how we have arrived at this situation, the answer is over quite a long period. I do not blame this particular Government, as much as some other noble Lords might, for the situation that we are in today, because all Governments are tempted by the easier life that they can have if their legislative objectives can be met by minimising the parliamentary scrutiny that would normally accompany and apply to Bills.
Our basic legislative process has the great merit of being able to change things. In the debate about secondary and tertiary legislation, part of the problem we face is that this House and Parliament as a whole do not have the ability to change anything. In the pressure cooker that is building up, something has to give.
I sometimes ask myself whether I am the only Member who sits here and thinks that the only way in which this or any other Government are going to pay any attention to this House regarding a statutory instrument is by voting it down. That would make people sit up and take notice. The noble Lord, Lord Hodgson, referred to it as nuclear war, and I can understand why he said that. It would be a great shock to the system. I am fully aware that this is one of the issues in which the interests of both Front Benches are greater and have more in common than those of the Front and Back Benches of each side of the House. One day, the Members opposite who I gaze at are going to be sitting on these Benches, and my colleagues will be sitting on those Benches. We all know that a future Government of a different kind will not want to feel that this House votes down an SI. That is all very obvious, but we must counter the insidious shift in the balance of power between the Executive and the legislature.
Looking back, we see that ever since the English civil war Parliament has been trying to gain, and has gained, powers from the monarch, resulting in the constitutional monarchy that we have today. But that is not the end of the story—far from it. Powers once exercised by the monarch are, in effect, exercised by the Prime Minister, and the balance of power has shifted to an Executive who increasingly find Parliament to be an inconvenience and not a partner.
I have read the Government’s response to the report and can therefore anticipate what the Leader of the House will say in his speech. I join others in saying that the Cabinet Office rules should be rewritten entirely in line with the reports. I say again that, whatever the future solution to some of these problems is, it lies in this House’s power to amend.
Finally, I do not know how much interest in our debate will be taken outside the House but I wish that a debate such as this could be livestreamed into schools, colleges and universities where politics is taught, because people need to know that the debate about our parliamentary democracy is live; it is still going on, not somehow fixed in aspic. On the contrary, the debate is a living thing and, for that reason, I very much commend these reports and welcome today’s debate.
My Lords, like the noble Viscount, I congratulate the two chairmen of the committees whose reports we are discussing. It seems that I have spent part of my parliamentary life following my noble friend Lord Blencathra. I was his Deputy Chief Whip and became Conservative Party Chief Whip when he ceased to be so. He was chairman of the Delegated Powers Committee and I took over the chairmanship when he ceased to be chairman earlier this year. I know from experience that, when my noble friend Lord Blencathra sets his mind to a specific topic, he will not let it go until he sees some success. That is very much part of what we have seen in the report we are discussing today.
We have had many excellent contributions today, all narrating some of the problems that we now face. These are not new problems. Indeed, I remember from when I first joined the Cabinet in 2010 my noble friend Lord Strathclyde lecturing us on the contempt which the House of Lords has for Henry VIII clauses and telling Cabinet Ministers to try to ensure that they were kept to a minimum. I had not heard of skeleton Bills; they seem to have been a development as time has gone on.
One of the reasons why we are where we are today—it has not been talked about much in this debate so far; perhaps there is a nervousness to talk about it—is Brexit. Brexit has fundamentally changed the way in which we legislate in this country. I was not in favour of Brexit, but I accept that I voted for the referendum, and we have to accept the results of that referendum. However, it has changed the pressure on government and on these Houses. A lot of legislation and regulations did not need to come to this House, because they were brought in by European directives. That has now gone. That is not being anti-Brexit; it is just a change in the situation. I think it is an issue which perhaps has been slightly overlooked in some of the grander issues that have come about.
I well remember being told initially that the most legislation you should expect to get through in one year was 20 pieces. The last Queen’s Speech to the House, read by the now King, included 31 pieces of legislation. The demand of getting legislation through both Houses of Parliament has put added pressures on us.
While I very much welcome the reports, which are right in their way, the noble Lord, Lord Goddard, referred to the Bill on EU legislation that is on the horizon and that we will be discussing. That will facilitate reforms for over 2,400 pieces of legislation, and most of it is going to be done through regulations and orders. That is not about the House of Lords wanting to be very awkward about something—it is the House of Lords asking whether we are getting scrutiny of legislation right, the laws that people live by in this country. That is one of the key issues which both Houses of Parliament need to address over the coming years.
The points made by my noble friend Lord Howell on what was done 35 or 40 years ago in setting up the new Select Committees were absolutely right. We have moved to a new situation, and we need to reflect that in the way the committees of both Houses work. One of the things that has happened in the House of Commons is that everything is timetabled, so there is not the detailed scrutiny that there is in your Lordships’ House. That is one of the things that I have noticed most notably since my arrival in this House.
These reports set us challenges, and they set the Government challenges. The Government need to reflect carefully on them, but should try to do so in such a way that it is not only the Government who take them forward but the House and the Opposition as well.
My Lords, it is a pleasure to follow my noble friend Lord McLoughlin. I agree with his important points about the legislative workload legacy of Brexit. I, too, thank my noble friends Lord Blencathra and Lord Hodgson of Astley Abbotts and congratulate them on the forthright and formidable reports which their committees have produced. These are weighty documents. As the noble Viscount, Lord Stansgate, told us, they pull no punches. Indeed, as my noble friend Lady Fookes implied, they pack a powerful punch, showing once again the invaluable, dispassionate and uncompromised contribution of your Lordships’ House to the health and well-being of British democracy.
I will not pretend that I found the technical detail of the measures, devices and procedures that we are discussing easy to understand, but then I assume that is the intention. However, what is clear from the reports and the Government’s responses, as well as from the two committees’ subsequent expressions of disappointment with those responses, is the direction of travel. In short, we are moving in the wrong direction. The danger is that, until and unless the Government accept the need to rebalance power by returning power to Parliament, the Government—the state—will continue inexorably to accrue more power. This is not good for democracy, because rebalancing and returning power to Parliament is not simply a technical matter; it is surely fundamental to restoring public trust in the political process, as the noble Lords, Lord Janvrin and Lord Prentis of Leeds, in his powerful maiden speech, reminded us.
The right reverend Prelate, who is not in his place at the moment, spoke of taking back control. My position on Brexit was informed by whether the British people would be able to hold their Government to account for decisions affecting the minutiae of their daily lives. I never intended that my vote to leave should somehow be misinterpreted as a licence for the Government to assume yet more control over our lives. That is not to say, of course, that in repatriating powers which were surrendered by successive Governments to the EU through statutory instruments and similar unaccountable devices during our membership of the EU, Parliament should then obstruct the Government’s promise to complete that process by the end of the year. However, it does mean that careful consideration needs to be given to what I remember as a student my noble friend Lord Norton of Louth described as the delicate balance between the effectiveness of government and the consent of the governed. Accountability is central to that.
I suggest that, in addition to continuing to champion the recommendations of these two very important reports, your Lordships’ House has a crucial role to play in facilitating that greater accountability. My noble friend Lord Howell of Guildford called for a stronger committee system. I wonder whether we could commission an examination of the impact of our committees in terms of government take-up of their recommendations, perhaps going as far back as 2015, including an analysis of what external stakeholders who have given written or oral evidence felt came out of it, in terms of their impression of the value of the inquiry and the committee’s recommendations, and what they thought of how the Government have responded.
Might that not be a pragmatic way, not only of this House showing that it is more than just a talking shop, but of Parliament and Government together demonstrating that we both recognise the need continually to earn the trust of the British people? We both have skin in the game here. That, ultimately, is surely what this is all about.
My Lords, I declare an interest as a member of the Secondary Legislation Scrutiny Committee. The traditional way of ensuring that the executive powers are responsible for their actions and that they are accountable for their effects has been the scrutiny of government legislation during the process of its enactment. However, this way of handling the issues arising out of detailed regulations associated with parliamentary Acts is no longer possible. Insufficient time is available to scrutinise these matters in sessions on the Floor of the House or in Grand Committee.
Increasingly, the regulations are enacted in secondary legislation via powers granted in the primary Acts of Parliament. The scrutiny of the regulations has been assigned to standing committees of both Houses. In the Lords, the recourse has been to assign the task of scrutinising secondary legislation to two committees. The Delegated Powers Committee polices the boundary between primary and secondary legislation, and it is empowered to object to inappropriate delegations of power to Ministers. The Secondary Legislation Scrutiny Committee attempts, on a weekly basis, to scrutinise a plethora of instruments produced under those delegated powers. It is a committee of 11 members which is served by a highly competent secretariat. It is overwhelmed by its task, and is able to operate only by virtue of a sifting process undertaken by the secretariat that draws its attention to the most important or the most contentious of the instruments.
It takes time for the members of the committee to gain sufficient knowledge of the nature of the legislative processes that they must scrutinise, and to become familiar with the behaviour of the government departments from which the legislation emanates. The members are subject to the same rule as the members of other standing committees that limits their time on the committee to three years. By the time that they have gained a competence in these matters, they must move on. It should be noted that two-thirds of the current committee is due to retire shortly. This has been brought to the attention of the authorities that govern the membership of committees. The objection that these retirements are bound to prejudice the effectiveness of the committee has been met with the bland assertion that any 12 Members of the House who might serve on the committee should be as good as the ones whom they are liable to replace. This assertion speaks of an old-fashioned tradition of amateurism that dominates our politics.
The government departments doubtless find the scrutiny of the committee irksome but, if they are well appraised of our democratic norms, they are bound to accept it with good grace. However, there is tension, with both sides pushing against each other. The judgment of the two reports that we are debating today is that the Executive have pushed too far and that much of the secondary legislation amounts to government by diktat. Also, a Government who have been in power too long have become impatient with the processes of democratic scrutiny. They have tended increasingly to resort to so-called skeletal legislation, which gives Ministers unbridled powers to create administrative regulations where formerly they would have been expected to enact their policies via primary legislation.
There is also a widening gap between the mythologies of politics and the practicalities of public administration. Many in the Government take an atavistic approach to regulations, which they tend to see as infringements on personal liberties and as impediments to economic enterprise. This contrasts oddly with the Government’s increasing use of secondary delegated legislation. This negative attitude to regulation is common, and has fuelled the agenda of the proponents of Brexit to scrap the retained European Union legislation before the end of this year. The truth is that almost all of it will need to be replicated in British legislation, which will be a wholly unnecessary exercise that will pre-empt the resources of the Civil Service. The burden of the scrutinising committees will be markedly increased, as will the objections to the undemocratic administrative steamroller.
The reports from the two Lords committees call for changes within the existing framework that might serve to redress the balance between government and Parliament in favour of Parliament. I have to wonder whether these changes will be sufficient. It appears that something more radical is required to cope with the mass of secondary legislation and to bring it all under proper scrutiny. Perhaps committees could be appointed that monitor and scrutinise the secondary legislation that emerges from each government department, and they should alert the rest of the House to whatever they find to be amiss, with greater powers to hold them in check. The Commons already has committees that shadow each department. These might take a more active role in scrutinising secondary legislation. The advantage of having such committees in the Lords is that they would be further from the reach of the Government than their Commons counterparts. Therefore, they would be able to conduct a more critical and effective oversight of the legislation.
My Lords, in 2020 Dr Andrew Corbett from the defence studies department of King’s College London wrote:
“Coups happen in other countries—they are not something the public would ever expect in Britain.”
However, having listed some of the actions of Boris Johnson’s Government, he asked whether what he saw as an undermining of democracy amounted to “a very British coup”. While the Johnson Government’s apparent contempt for Parliament was signified most notably—but by no means solely—by the attempt to prorogue it, the rot set in much earlier. The two reports we are considering throw a light on the extent to which Parliament has been gradually undermined for years. Ernest Hemingway wrote that there were two ways of going bankrupt, “Gradually and then suddenly”. The same might be said of losing British democracy.
The titles of these two reports really say it all: Government by Diktat: A Call to Return Power to Parliament and Democracy Denied? The Urgent Need to Rebalance Power between Parliament and the Executive. I am very grateful for all the hard work that has gone into producing these reports, and to the two chairmen for their eloquent speeches today. They detailed the failings of delegated legislation to adhere to the principles of parliamentary democracy. This situation has not come about by accident. A determined Executive do not welcome scrutiny—even less so if it leads to opposition.
The noble Baroness, Lady Fookes, was first to remind us of the 2015 battle over tax credits. The noble Lord, Lord Lisvane, said that this was completely a failure of the Government’s making, through their trying to legislate on such a massive issue. Cutting vital tax credits to those who really need them should never have been attempted by statutory instrument. Nevertheless, the lesson that came through very clearly was that the Government did not wish to be asked to think again—and again. Threats to this House were hardly even veiled: if we were to continue to misbehave, we might have a very dicey future.
The noble Lord, Lord Lisvane, explained that, while these reports go a long way in detailing what is wrong, the problem is much deeper. The threat to parliamentary democracy goes way beyond what is happening in our secondary legislation. The scale of the legislation coming through at the moment makes scrutiny impossible. The noble Lord, Lord McLoughlin, explained that the demands of Brexit—whether one wanted Brexit or not—bring a huge legislative burden that is leading to things being rushed through. There is the scale of the Bills we are being presented with, as the noble Lord, Lord Lisvane, said, which are half-baked—that is being quite kind. Then there is the weight of them; the Financial Services and Markets Bill runs to 346 pages. The levelling-up Bill runs to 408. It is what many would think of as something of a Christmas tree. It is a planning Bill with other little bits attached. Some of the little bits are quite interesting; it came as a surprise to me that some elected leaders of areas in this country could be known as governors in future. There are also other surprises in there, but very few seem to relate to levelling up—that will come later, much of it in guidance and secondary legislation.
One of the things that came through most strongly in these reports was the use of disguised legislation. To call anything mandatory guidance is, of course, as the reports point out, a complete nonsense. But “have regard to” is a very dangerous term. In particular, we saw in the Elections Bill the fact that the Electoral Commission must have regard to a statement coming from the Government setting out their strategic and policy priorities relating to elections. Now, that sounds—certainly to me—like interference with the Electoral Commission. This House was certainly concerned, but the Commons did not share our concern and so this chilling guidance is now in the Act. It will undoubtedly influence the way that the Electoral Commission, supposedly an independent body, behaves in future.
The report of the Delegated Powers Committee points out, quite rightly, that an instruction to have regard carries the implication that the guidance will be adhered to. So I ask the Leader of the House how he might respond should the Prime Minister ask him to have regard to the Prime Minister’s views on a particular issue: might we expect it to colour his thinking at all?
The democratic deficit that we now perceive may explain why, according to a report from the ONS last year, only 35% of people trust the Government of this country—one of the lowest ratings in the OECD. These reports propose some remedies which might go some way to addressing that democratic deficit. They deserve a better response than they have received from the Government, and so I think we should pay great attention to the speech of the noble Lord, Lord Norton of Louth, and maybe be a little braver in future in making our views known.
My Lords, I would like to follow that by also looking at how we can be braver, in both this and the other House. Much of the debate today has focused on a call for the Government to mend their ways, but I would like to look at what Parliament itself can do. The key question I pose is whether the powers exercised by government have strayed beyond the founding concepts of our parliamentary democracy. There are wiser and more knowledgeable Members in this debate who have an exact understanding of these foundations, the history behind them, the royal prerogative and the nature of the powers transferred to the Executive.
However, I pose that the fundamental premise of our democracy must surely be that what Parliament has granted, it can take away or alter. The Government will undoubtedly argue that Parliament grants powers over secondary legislation by passing the primary legislation. However, the tools available at the primary legislation stage are very limited. My noble friend Lord Wallace, and many others, have cited the lack of policy intent which is described within the primary legislation. So what Parliament is usually left with is a choice between the affirmative or the negative procedure, perhaps occasionally throwing in the super-affirmative procedure, which is an infrequently used tool in the box. Following the premise that what Parliament can provide, it can also amend or take away, some solutions to the issues raised in these reports rest in the hands of Parliament.
I must say additionally, however, that there is a major impact on the Senedd, the Welsh Parliament, which is faced with secondary legislation in areas of policy it has powers over but has no way of making that secondary legislation itself and no veto over the powers that are made. This is particularly relevant to primary legislation enacted prior to primary legislative powers being granted to the Senedd, and where legislative consent Motions have been passed to permit Westminster to legislate on its behalf. There is some limited “consultation”, in inverted commas, with the Welsh Government, but there are no powers in the hands of the Senedd.
If we accept the fundamental premise of these reports, Parliament must take action to redress the balance. Obviously, any solution to this problem, as the noble Lord, Lord Janvrin, has pointed out, must have the support of the House of Commons. It would be absurd for the unelected Chamber to assert democratic rights which do not have Commons support. This is some challenge because the Government rely on their majority in the House of Commons and will want to secure that majority for getting their legislation through unamended. To avoid the extent of that pull in the other direction, it would be sensible to focus on the small steps that lie behind the concerns expressed in these reports. To my mind, that means a sharp focus on the ability of Parliament to amend or require the Government to think again on matters contained in their proposed secondary legislation.
I very much value the contribution from the noble Lord, Lord Norton of Louth, about renaming a fatal Motion a “Motion to refer back”. Most organisations in this country will have policy motions before them—political parties do—which are referred back for further consideration. If we could make it absolutely clear in Parliament that that is our intent, there is no reason we should not refer back matters which this Parliament feels are inappropriate or need improvement or interpretation to be able to produce good law. The objective is to create one or two new tools in our parliamentary box that would allow us to deal with these matters and to lay them out.
The ability to amend is crucial as well. There are obviously some significant parts of secondary legislation where some amendment would make a difference and make it an improved law, so the ability to amend ought to be discussed with our colleagues in the other House as an important tool which would allow Parliament as a whole to do a better job of ensuring that legislation is fit for purpose and better law in general. The first small-scale reform process must be to create a dialogue within this House, within the House of Commons and between the Houses with the important step of taking forward a Joint Committee of inquiry so we can make these changes and make them stick. If we believe in the scrutiny powers of Parliament, we should not be afraid of amendment and making sure that Parliament takes action to address the balance in legislative powers.
My Lords, I thank both committees for these excellent reports. What is more, I thank them for making them readable. The DPRRC apologises for its report being full of parliamentary nomenclature and technical procedural explanations like some “esoteric constitutional essay”. However, I thank the committees for their clarity and making the opaque accessible. The start of chapter 2 of Democracy Denied?, explaining terms such as “Henry VIII powers” and “skeleton legislation”, is invaluable, and, in the spirit of the contribution of the noble Viscount, Lord Stansgate, I will be recommending both reports as must-reads far beyond Westminster.
I especially commend the committee consciously aiming to make the report comprehensible to the public. As the noble Lord, Lord Blencathra, explained, the issues raised are anything but esoteric and affect the freedoms and rights of every single person in this country. However, the public are not just objects of law changes; that is too passive a depiction. The report details a worrying shift in the balance of power. Evidence of the Executive’s power-grab is compelling, but when we demand that the Government be accountable to Parliament, we must also stress that Parliament needs to be accountable to the public. Too often in recent years the demos, the foundation of democracy, have felt that parliamentarians sometimes refuse to act on their wishes. If the Government promise the public that they will, for example, act to control borders but when they attempt to act the public see parliamentarians trying to block that action, does that not give the moral high ground argument to the Executive to breach convention to push through publicly supported laws? That is a warning to this unelected House about indulging in overreach, acting more as an Opposition than as a scrutineer, and using every tactic in the book to fight laws it does not like, even if the electorate do.
As we heard from the noble Lord, Lord Prentis of Leeds, in his impressive maiden speech, outside this House there is a growing visceral distrust of Parliament per se. Conversely, I agree with the report’s concerns that when laws are delegated, the public are done a disservice and in turn are confused when some laws sail through without parliamentary challenge. An example already mentioned was when in lockdown the Government scandalously made it mandatory for anyone working in a care home to be fully vaccinated or be sacked. This happened with no risk analysis of the cost-benefit impact on the care sector, and there was nothing parliamentarians could do about it. Some 40,000 care workers were driven out of their jobs then, and now almost daily we hear discussed the crisis of care worker shortages and never acknowledge how bad lawmaking contributed to this disastrous state of affairs. No wonder the public are confused and disillusioned. This is why it is so important to shine a light on anti-democratic lawmaking processes. The shocking use of disguised legislative instruments should, in fact, be front page news.
I have a couple of thoughts on solutions. In the reports, Permanent Secretaries claim that increased use of statutory instruments is due to the competition for parliamentary time. Is not the solution here obvious? There should be fewer laws. To the Minister, I repeat the question posed by Lord Simon in a 1990 debate:
“to ask Her Majesty’s Government whether they will reduce the quantity and improve the quality of legislation.”—[Official Report, 31/1/1990; col. 382.]
I suggest that lawmaking has become a technocratic substitute for political leadership. Is this because politicians lack the imagination or moral courage to try to persuade citizens of the need for social change and instead rely on the law to compel it? So many laws feel unnecessary and performative—headline-grabbing responses to demands that something must be done.
As we enter Report stage on the Public Order Bill, we have, as many noble Lords have noted, a statute book full of legislation that could deal with the egregious aspects of modern protest tactics. The problem is that they are not being enforced, and more laws will not solve this problem.
By the way, the enthusiasm for creating new laws to tackle all and every issue is not just a weakness of the Conservative Administration. Often, the Opposition’s main demands on Government are even more laws, if different ones, or myriad amendments so detailed that they could constitute new laws in their own right.
On time constraints, why are so many Bills such enormous, complex, impenetrable tomes, containing everything bar the kitchen sink? Is this the attempt of politicians to micromanage every conceivable aspect of the public’s autonomous choices because they do not trust the voters? Such expansive Bills are often far removed from their original intent. The Online Safety Bill is a case in point: once conceived narrowly but importantly as protecting children, now so huge it represents an existential threat to the free speech of adults. This is a crisis not just of democracy but of our freedoms.
My Lords, it is a pleasure to follow the noble Baroness, Lady Fox.
I urge noble Lords to heed the words of John Adams:
“Remember, democracy never lasts long. … There never was a democracy yet that did not commit suicide.”
We are in danger, as the two reports point out. The rallying cry in 2015 of those angered by so-called EU edicts urged people to vote to leave the EU to ensure lawmaking power returned to our sovereign national Parliament. Parliamentary sovereignty means that Parliament is superior to the Executive. This is a cornerstone of our constitutional system. Replacing the fear of EU edicts with the reality of edicts from one political party’s handful of Ministers is obviously attractive to current leaders but must be resisted. The Government are not synonymous with the state.
EU membership never actually removed or overrode the UK constitution. Parliament always had the power to repeal the 1972 legislation which took us into the EU, but ironically, as the right reverend Prelate the Bishop of St Albans and these committees’ excellent reports have pointed out, not only has Covid legislation overridden some of our parliamentary scrutiny powers— this might be excusable on life and death, public protection grounds—but EU exit-related Bills have been at the forefront of those that seek to gather untrammelled powers to the Executive. Witness the Northern Ireland Protocol Bill or the Retained EU Law (Revocation and Reform) Bill, which is coming up, as so many noble Lords have mentioned.
Brexit has happened. I am not speaking about rejecting Brexit. This is about parliamentary sovereignty and our democracy. These are just the most egregious examples of proposals seeking to take away Parliament’s powers of scrutiny or amendment, replacing them with ministerial diktats.
There may be some confusion about the meaning of parliamentary sovereignty. Sometimes the term “parliamentary control” has been used, but I prefer to think of this as parliamentary protection of the public interest. Democracy is about representation of the people. Authoritarian dictatorship is about control of the people and transferring powers to an Executive. This vastly increases the risk that the rights of the minority could be trampled on by a narrow majority. I urge the Government to resist the attraction of acting with a cavalier indifference towards the concept of parliamentary scrutiny which is incompatible with the reality of parliamentary sovereignty.
These two excellent reports sound a much-needed siren of alarm that the UK is in danger of sliding into being governed by executive fiat rather than parliamentary scrutiny, as is our norm. It appears that the national interest is being aligned with the specific interest of the political party currently in power, rather than the wider national interests of the state.
We must not wait to look back on the past few years with the solemn regret of hindsight. Almost perceptibly, as so many have pointed out, the Government have been gathering powers to the Executive to override parliamentary scrutiny, putting us on a slippery slope towards an elected dictatorship and putting our country’s precious democracy under threat. Framework skeleton clauses in Bills, Henry VIII powers, disguised legislation, mandatory guidance—which the noble Baroness, Lady Wheatcroft, mentioned—tertiary legislation and the absence of impact assessments are all removing Parliament’s ability to protect the public against this authoritarian type of rule. If these trends persist, Parliament may have no role in scrutinising or amending the laws that citizens of this country are meant to live by.
In my view, it is our duty as parliamentarians to oppose this power grab, and I am enormously grateful to my noble friends Lord Blencathra and Lord Hodgson, and all the committee members and clerks of the DPRRC and SLSC, for their excellent reports and for doing just that. I urge my noble friend the Leader of the House to take seriously these concerns from so many colleagues on our own Benches, as well as all other parts of the House, and encourage a change of approach plus acceptance of these recommendations.
My Lords, I add my compliments to those of others in the House on the excellent maiden speech from my noble friend Lord Prentis.
I declare an interest as another member of the Delegated Powers and Regulatory Reform Committee, the first and only committee in the House on which I have had the honour to serve. I take the opportunity to praise the diligence and insight of the committee’s members, many of whom have spoken today, and of course the two wonderful chairmen of the committee in my time on it, the noble Lords, Lord Blencathra and Lord McLoughlin. I echo others in praising our superb clerk, Christine Salmon Percival, and her assiduous assistant, Louise Andrews. After 45 years of practice at the Bar myself, I specifically praise the counsel to the committee, James Cooper, Nick Beach and Che Diamond. Their wise and concise notes on legislation before the committee have been, and are, simply magnificent.
As to the issues raised in the two reports under consideration, to me there appears so far to be virtual unanimity across the House as to the principles that ought to apply and that are so often ignored. Since the publication of Democracy Denied?, and indeed Government by Diktat, I have sometimes wondered whether the committee is wasting its time in making recommendations, essential for democracy, which are so often ignored.
I agree with my noble friend Lord Stansgate that this is not a party-political issue. It arises from a fundamental tension between the Executive and Parliament. After all, as he mentioned, we fought the civil war on this very issue some 500 years ago. It seems that the current balance is still wholly unsatisfactory; it needs reregulation. I agree, of course, with the conclusions of both committees, perhaps captured by the first recommendation of the Hansard Society, which suggests:
“A new concordat between Parliament and Government, including a set of ‘Principles for Legislative Delegation’, to reset the boundary between what should go in Bills and what should go in SIs.”
I would add “and in tertiary and disguised legislation” as well, as described so impressively by the noble Lord, Lord Blencathra, in opening this debate and set out in paragraphs 89 to 112 of Democracy Denied? I hope the Government will find time to reform along the lines proposed, whether by legislation or otherwise, to achieve the objectives desired on all side of the House.
My Lords, it is a great pleasure to follow the speech of my noble friend Lord Hendy, and to hear the maiden speech of my noble friend Lord Prentis. I have been a member of the Secondary Legislation Scrutiny Committee since 2021, and it has been a great privilege to serve under the excellent chairmanship of the noble Lord, Lord Hodgson.
As many others have said in this debate, at its heart this is a debate about the balance of constitutional power, and specifically the relationship between the Executive and Parliament. These two excellent reports chart the inexorable shift in this balance over recent years under Conservative and Labour Governments. In reading these two reports, there is only one conclusion to reach—that that balance has shifted decisively in favour of the Executive at the expense of proper parliamentary scrutiny. This is not a healthy shift. On one level, it undermines our democracy, it is not good for the law-making process itself and it has, from time to time, brought the law itself into disrepute, as we saw during the pandemic when extensive use was made of delegated legislation.
These two reports identify several problems with the process of making secondary legislation, all of which have been well referred to by the noble Lords, Lord Blencathra and Lord Hodgson. I want to highlight what I consider to be the greatest problem we are facing, which is the growing use of what has been termed “skeleton legislation”: primary legislation drafted in outline terms only and with all, or most of, the important policy details left to Ministers to determine by using their powers to make statutory instruments. Just in the past few weeks, we have seen some pretty good examples of skeleton legislation, with the Energy Prices Act and the Strikes (Minimum Service Levels) Bill. Crucial areas of the legislation are left entirely to Ministers to determine, and Parliament has had—at the time of considering legislation—little detail whatsoever. The real operation of this legislation is going to be determined entirely by the regulations made under it. Our report refers to many other examples of this type of legislation, and many Members of this House have referred to the Retained EU Law (Revocation and Reform) Bill, which is probably the best example of them all.
Much of this detailed legislation will become law, as I said, with little or no consideration by Parliament whatsoever. I fully understand and accept that Governments will want to use secondary legislation to implement many aspects of policy, and that makes absolute sense. However, if Ministers want to use these skeleton legislative vehicles, they really should be prepared to accept that this sort of power should be accompanied by enhanced levels of parliamentary scrutiny. To me, that is a reasonable quid pro quo. This could be done in a number of ways. Delegated legislation in skeleton Bills could be subject to the super-affirmative procedure, as the noble Lord, Lord German, suggested. That would allow an opportunity for Members to comment on draft regulations and suggest possible amendments. There is a more radical option: using the precedent contained in Section 27 of the Civil Contingencies Act 2004. Under this provision, amendments can be tabled, in either House, to any statutory instrument laid under the primary Act. I am not aware that this has ever happened. I am not sure whether, under the 2004 Act, any regulations have been brought forward, but that is not the point. It is possible to devise greater scrutiny over ministerial powers to make secondary legislation—and, if you want a precedent, you can find one in that 2004 Act.
I know that the Government do not favour any kind of enhanced scrutiny. As they said in their response to our report, they do not believe that such skeleton Bills can be readily defined. I do not buy that argument, and I do not think that anyone in this House today buys it. I fear that this is a smokescreen for further foot-dragging. We all know a skeleton Bill in this House when we see one. It is not beyond the wit of both Houses to devise a sensible procedure to deal with this glaring deficit in how we currently make most of our laws. It was a great shame and a missed opportunity that the Government responded to these two reports in such a cursory and dismissive fashion. But it is never too late for a change of heart, because we will have to find another way of doing things if we are serious about preserving the role of Parliament in our democracy.
My Lords, it is a particular pleasure to follow the noble Lord, Lord Hutton of Furness, because he made some extremely perceptive and very good points, particularly in the context of skeleton Bills. The defining feature of this debate—and I have heard all of it—has been support for the two committees of your Lordships’ House and a very real concern that the balance of power in our country is getting out of kilter. I pay tribute to my noble friends Lord Blencathra and Lord Hodgson of Astley Abbotts for their excellent and powerful speeches and, even more, for the reports that they have placed before us. It is indicative of government’s cavalier attitude towards Parliament that we have had to wait so long for this debate, and I deeply regret that.
When I entered the other place, way back in 1970, I was taken to one side, after taking the oath, by two very experienced parliamentarians: the late Sir Derek Walker-Smith and the late Sir David Renton, later Lord Renton. They said to me, “You are of course here as a Conservative Member of Parliament, and you will be expected to give general support to the Government, but that doesn’t mean agreeing with everything that they say. Remember”, said Sir David, wagging his finger at me, “it is the Government who are accountable to Parliament, not Parliament that is accountable to the Government.” I have tried to make that my watchword through the last 52 and a half years.
Certain messages come out of this debate. There is too much legislation. The question that should always be asked, before any Bill is introduced, is whether it is necessary. That is why it is so important—a number of colleagues have touched on this—that we should, as a matter of course, have pre-legislative scrutiny. We should also have post-legislative scrutiny, because we need to see how what we have enacted has impinged on the lives of our fellow citizens. The two Houses need to come together, because the fundamental flaw in parliamentary democracy in this country is that there is effectively no scrutiny in the other place: timetabling destroyed it. I was there when it happened, and I fought against it. Conservative spokesmen then said, “We’ll get rid of this”, but it was so convenient for the Executive that they did not get rid of it; they kept it. We will never have a true balance of power until there is proper scrutiny in the other place as well as this one.
In his excellent speech, my noble friend Lord Norton also talked about delegated legislation and our being rather afraid to use the power we have. That point was picked up by others; I think the noble Lord, Lord German, used the term “refer back” in his speech. We should have the courage to refer back to the other place delegated legislation that the Government have thrust upon us; we are not obliged to accept it. The Government are accountable to Parliament, but they will not be properly accountable to Parliament unless Parliament makes them so.
All these problems are not new; they are in a different guise. When I taught 18th-century history before I came to this place, I often talked about Dunning’s Motion of 1780, in which he said that the power of
“the Crown has increased, is increasing, and ought to be diminished.”
If we substitute “Executive” for “Crown”, that is true today. We have to get a better balance and remember those very famous words that “the price of liberty”—of which we are the guardians and for which we are responsible—“is eternal vigilance”. There has been so much appalling legislation, to whose length the noble Baroness, Lady Wheatcroft, referred, put before this House in recent years that we should all be thoroughly ashamed of it.
This has been a good debate. It is an honour to take part in it and we are all deeply grateful to the two noble Lords who led it so brilliantly.
My Lords, I congratulate the noble Lords, Lord Blencathra and Lord Hodgson of Astley Abbotts, on their excellent committee reports. They have exposed the two key constitutional concerns: that effective parliamentary scrutiny is being undermined by the way in which Bills are framed and that important policy decisions are increasingly being left to delegated legislation, thereby weakening parliamentary scrutiny and increasing ministerial powers.
Those concerns are shared by the Hansard Society and the Constitution Committee. In 2018, the Constitution Committee, chaired by my noble friend Lady Taylor of Bolton, published a report, The Legislative Process: The Delegation of Powers, which identified concerns that align with the conclusions in today’s reports. That report recognised that delegated powers are essential to the legislative process, allowing Parliament to focus on important policy decisions and leaving implementation detail to secondary legislation, but that the level of parliamentary scrutiny was increasingly contentious, evidencing a constitutionally objectionable trend for the Government to seek wide delegated powers that would permit the determination, as well as the implementation, of policy. For some, the determining factor as to whether to include a delegated power was whether Parliament would accept it, rather than any point of principle.
The report also emphasised that, where statutory instruments are used to give effect to significant policy decisions, without any genuine risk of defeat or possible amendment, Parliament is doing little more than rubber-stamping, which is constitutionally unacceptable. By working together, the Delegated Powers Committee and the Secondary Legislation Scrutiny Committee have shone a spotlight on what my noble friend Lady Taylor described as the accelerating and unhealthy
“trends in what … Ministers think they can get away with without properly consulting Parliament”.—[Official Report, 16/9/21; col. 1604.]
They have directed ministerial and parliamentary attention to the need to address
“the culture of using delegated legislation.”
The Constitution Committee continues to highlight constitutional concerns arising from weakening parliamentary scrutiny and enhanced ministerial powers in its reports on Bills brought to this House, which align in many instances with the conclusions in the reports before us today. In its report Brexit Legislation: Constitutional Issues, the committee took stock of all the Brexit legislation and criticised the powers therein for being too broad, too ill-defined and lacking in safeguards. A distinguishing feature was the extent of the delegated powers—skeleton Bills, with little or no detail on the policy or institutions to be created. The European Union (Withdrawal) Bill required Henry VIII powers to facilitate the withdrawal and deliver legal certainty and continuity, but it granted Ministers
“far greater latitude than is constitutionally acceptable”.
The reports COVID-19 and Parliament and COVID-19 and the Use and Scrutiny of Emergency Powers highlighted the volume of SIs laid in response to the pandemic, the use of fast-track procedures, which severely limited Parliament’s ability to scrutinise and provide a constitutional check on the exercise of arbitrary power, and the blurring of the distinction between legislation and guidance.
The Sewel convention does not apply to delegated legislation, but it would be constitutionally questionable for Parliament to circumvent it by legislating in a way that intends delegated legislation to change devolved legislation in areas of devolved competence. This concern was highlighted in the committee’s reports on the Nationality and Borders Bill, the Economic Crime (Transparency and Enforcement) Bill and the Energy Bill. Guidance utilised as disguised legislation was highlighted in its reports on the Public Order Bill and the Health and Care Bill. It was reasserted by the committee in its reports on the Energy Bill and the Northern Ireland Protocol Bill that delegated legislation to create criminal offences is constitutionally unacceptable.
The Delegated Powers Committee and the Secondary Legislation Scrutiny Committee have had several exchanges with the Government on strengthening parliamentary scrutiny. Some progress has been made, but it is clear from the debate today that much more is needed. The governance of our parliamentary democracy is more important than ever, as has been stressed by many Members. One Government’s acts of expediency can be deployed by a future Government as precedent, taking us further down the road away from Parliament making our laws towards Ministers increasingly taking powers to change the rules and regulations.
Finally, I congratulate my noble friend Lord Prentis on his maiden speech. I am sure that he will be an asset to the House.
My Lords, these are two excellent reports; sadly, they are not the first. As the noble Baroness, Lady Drake, has just reminded us, the Constitution Committee expressed serious concerns in its 2018 report, The Legislative Process: The Delegation of Powers, about the use of statutory instruments to give effect to significant policy decisions. It identified the core problem as the absence of a genuine risk of defeat with no amendment possible, which I shall come back to.
During the pandemic, over 400 statutory instruments were made. The vast majority took effect with no scrutiny at all. Legal changes were often set out in guidance or announced in media conferences before Parliament had even had the opportunity to scrutinise them. I wrote papers about that.
In June 2021, the Constitution Committee, to which I and others gave evidence, reported in COVID-19 and the Use and Scrutiny of Emergency Powers. This identified serious weaknesses in the way a huge body of regulations was made. It pointed out that the Government are required to report, explain and defend their policies. When scrutiny is limited through the fast-tracking of legislation, or the extensive use of secondary legislation, essential checks on executive power are lost.
However, 18 months later, here we are again. What is to be done? I endorse the recommendations made in these splendid reports. Time is tight, so I will focus on four points. I acknowledge that delegated legislation is necessary. Modern society is complex and changes too fast. Government often needs speed, flexibility and adaptability if it is to serve society.
First, at the heart of the problem perhaps, as others have said, is the all or nothing principle. We must address this. We must at least make more use of the delayed affirmative procedure. Further, as others have said, the two Houses should work to introduce a convention and a mechanism whereby the other place may reintroduce a statutory instrument which this House has rejected, or send it back amended on the basis that it will not be rejected a second time. The elected Chamber will then prevail, but after consideration and after having heard serious debate in this House.
Secondly, sunset provisions should be used more frequently. These would clear undergrowth, make for cleaner regulation and lessen the burden on business.
Thirdly, tertiary delegation is dangerous ground. When I studied administrative law 50 years ago, the maxim was “delegatus non potest delegare”. It seems all that is gone. Not only is Parliament’s scrutiny lost—so is the oversight of the Minister. The Secondary Legislation Committee is absolutely right that, when a statutory instrument includes a delegation of power, the Explanatory Memorandum must provide a full explanation of why the power is needed and of its scope. In my view, this will make those in the Minister’s office show their reasoning. They will have to think about it first, like a judge does when he gives his reasons in court.
Fourthly and finally, I turn to statutory guidance. We have heard about this from others. The Department for Education’s website today says:
“Statutory guidance sets out what schools and local authorities must do to comply with the law. You should follow the guidance unless you have a very good reason not to. There is some guidance that you must follow without exception. In these cases we make this clear in the guidance document itself.”
In this way, statutory guidance has escaped all scrutiny. This morning, the Department for Education’s website listed—I have them here—53 unscrutinised statutory guidance publications for schools and authorities. Of course, there are practical reasons for this, but we really must look at this more carefully.
So I endorse entirely what my noble friend Lord Blencathra said on the issue of guidance. Something must be done. Let us take back at least a little control.
My Lords, I think this House should be extremely grateful to the two noble Lords who have introduced their reports today. Both of them have the joy of being experienced in both Houses. They bring years of dedication to public service, and here we have before us not large tomes of material but just a few poignant pages of the issues we have been discussing this morning and afternoon. I am not going to cover what has already been covered by other noble Lords, but I wanted to say to them, and to all Members who served on either of those two committees, my personal thanks, and I hope the thanks of all of us, for the dedication and commitment they have shown day after day on these committees.
I will voice my thoughts on one particular area. I had the privilege of being the Deputy Speaker and Chairman of Ways and Means in the other place. I remember there was a procedure—certainly in the Speaker and myself talking, and I think the other deputies also—of having brought to our attention when and why the Henry VIII clauses were being used, so that we, who were sitting in the Chair, had knowledge of the situation. I have to say to my good and noble friend Lord Blencathra, that was longer than 20 years ago, and I think Henry VIII has the ability to last through the centuries. From my point of view, that is a typical example.
I also had the privilege of sitting on the Public Accounts Committee for some 12 years. It was all-party and the joy of today is that this is all-party. That committee had the benefit of the work of the NAO to scrutinise what had happened to certain pieces of legislation and to put before our committee what we thought Parliament should do about it.
We, almost every time, set a sunset clause, and I believe that is one of the fundamental areas that must happen in every single piece of legislation. I have read carefully the two letters from the Leader of the House in the other place, and it seems to me, reading them, that the sentiment of those letters is that there is a willingness not just to listen but to act. Maybe not to act on every dimension that was raised in the two reports, but it seems to me that the climate is there, and that is so important in life.
We are a parliamentary democracy, and we do all care. Many of us have stood in the other place looking after constituents, and we still care for what we do, because that is our primary role for being here in the first place. By “we” I mean the Commons and the Lords, and this is one time when the two really must get together. My noble friend on the Front Bench has a degree of sensitivity to the nuances of Parliament. We should look at the titles of these two documents. The one from the Delegated Powers and Regulatory Reform Committee is Democracy Denied? The Urgent Need to Rebalance Power Between Parliament and the Executive; and the other one is Government by Diktat: A Call to Return Power to Parliament. I look to my noble friend on the Front Bench to recognise the sincerity, the depth of work that has been done, and the real need for positive action on both these fronts.
My Lords, I welcome these reports, as I have welcomed reports produced by these two committees and the Constitution Committee before 2021-22. I particularly welcome the unequivocal language in which these reports are expressed; there is no way that anybody can misunderstand their meaning. I also welcome the support on all sides of the House for what the reports have said, and in particular for the two speeches by the leading protagonists.
But at this stage of the afternoon, I want to ask myself a different question: what is the total sum? I do regret that the total sum seems to add up to the very distinct possibility, though it is not particularly underlined in the reports, that increasingly we are being governed by proclamation. Of course, we wiped out government by proclamation when the Stuarts were here, and there are many proclamations which are fine—there is a proclamation every time you drive past a speed limit sign, which tells you “That is the limit, that is the law”. When we are told to wash our hands more than three times a day for 20 seconds or more, that is advice, and there is nothing wrong with proclamations that set out the law or government advice.
The problem is where the Government of the day set out the sort of issue that arose during the Covid pandemic, “How do we deal with it?” I am not going to enter into the argument about it, but it undoubtedly was government by proclamation. The real question is, “What sort of proclamation rule do we have?” I am taking a word which has been used quite a number of times this afternoon; we have proclamations in disguise. The disguise is the parliamentary process. The parliamentary process, if you take every word down to its last theory, provides a perfect controlling system by which secondary legislation—statutory instruments—is controlled.
We all know that it does not work like that, and the reason we know that it does not work like that is twofold. First, when was the last time the House of Commons, which after all produces this material for us, actually rejected a statutory instrument? Gazillions of thousands of pages have been produced, but the last time was in 1979—is that a form of control being exercised? Then you have the other side of the same coin, which is, “Why do the Executive continue to do it this way?” The short answer is, “Because it’s very friendly to do it that way, and because the controls that are supposed to be available are not being deployed.”
I want to draw the House’s attention, really by way of summary, to the latest piece of legislation coming our way, the Transport Strikes (Minimum Service Levels) Bill. It is a skeleton Bill with a supercharged Henry VIII clause, and it illustrates my point. The first clause is on “Minimum service levels for transport strikes”. It is actually declaratory and does not make any law at all. It is misleading, because in paragraph 4 of new Schedule A2A, you will find that there are relevant matters relating to health, national security, social care, education, the economy and the environment, and that:
“The Secretary of State may by regulations amend this paragraph to change the matters that are relevant matters”,
so they can just add to this list.
I should interrupt myself to say that I am not making any comment on the value or otherwise of this proposal; I am looking at it as a piece of legislation. Clause 3 tells us its extent, Clause 4 tells us its commencement and transitional provision, and Clause 5 tells us its Short Title—that is it. There is one real clause in it: Clause 2, about the “Power to make consequential provision”. Hang on a minute: about what? The Secretary of State
“may by regulations made by statutory instrument make provision that is consequential on this Act”,
“Regulations under this section may amend, repeal or revoke provision made by or under”
an Act passed
“before this Act, or … later in the same session … as this Act.”
This is an important piece of legislation. We have all read the Government’s response to the two reports we are discussing this afternoon, but I do not see any link whatever between those responses and this legislation. We cannot go on like this.
My Lords, it is a great pleasure to follow the noble and learned Lord, Lord Judge. I start by congratulating the noble Lord, Lord Prentis, on his maiden speech. It is always a particular pleasure to welcome a fellow Member of your Lordships’ House who was born in Leeds. I am sure he will make a very substantive contribution to the work of the House, and I look forward to hearing from him in future. I begin with an apology on behalf of my noble friend Lady Thomas of Winchester, who, as a former chair of the Delegated Powers Committee, was very much looking forward to taking part in today’s debate. Unfortunately, she is indisposed. I am sure she will be watching the debate avidly and have clear views on it.
The reports we are debating today deal with one of the most fundamental and fraught relationships in a democracy: that between the Executive and the legislature. There is an inevitable and natural tension between the two, and different democracies strike different balances between them. In the case of the UK, we have developed a series of conventions about how the relationships work, which, broadly speaking, have stood the test of time. These reports demonstrate that this relationship has shifted in recent years, in that the Executive have successfully sought to increase their control of legislation by reducing the scope of primary legislation—which is subject to full and detailed scrutiny, amendment and sometimes rejection—in favour of secondary legislation, over which there is very limited scrutiny, which is incapable of amendment, and which in well over 99% of cases results in the statutory instrument being approved in its original form.
As the reports make clear, this increased use of secondary legislation has a number of causes. Sometimes the Bill is presented to Parliament before there has been time to do the detailed drafting. Sometimes Ministers themselves seem unclear about exactly how they expect the intended legislation to operate. In what appears to be an increasing number of cases, Ministers simply seek to maximise their discretionary powers at the expense of Parliament. Since the reports were produced there have been a number of very clear examples of this principle in practice. The Schools Bill—now thankfully withdrawn—was one, as is the Retained EU Law (Revocation and Reform) Bill. As the noble and learned Lord, Lord Judge, very eloquently pointed out, the Transport Strikes (Minimum Service Levels) Bill is another. There is clearly widespread agreement, not just in the reports but in today’s debate, that the current trend towards skeleton Bills and the increasing use of secondary legislation is unsatisfactory and should be reversed.
In his evidence to the Delegated Powers Committee, the then Lord President argued that proposed ministerial powers contained in upcoming legislation via secondary legislation were subject to intensive scrutiny by the public bills and legislation Cabinet committee. I sat on that committee for three years from 2012, and that issue was rarely discussed. If it was, it was in the context of whether widespread SI-making powers would cause problems in getting the Bill through your Lordships’ House. It was certainly never about whether in principle the Bill was giving Ministers too much power. Maybe since then things have changed, as he suggested. But the evidence of many recent Bills is that, to the extent that they have changed, they have done so for the worse. It would be a bad mistake to place any faith in the PBL committee to redress things.
Instead, we look to reports. They contain a swathe of sensible proposals about how to improve the situation. If implemented, they would undoubtedly go some considerable way to doing so. But the reports do not completely address how Parliament should respond when faced with proposals that still contain far too many discretionary ministerial powers to be exercised by secondary legislation. What should we do about it?
In the medium term, one way of addressing that is to increase Parliament’s ability to amend or reject an SI, as several noble Lords, including my noble friend Lord German, have suggested. For the Lords, this could take the form of asking the Commons to think again, in much the same way in which we do for primary legislation. For the Commons, it might take the form of requiring an amendment to be made before the SI is approved. Such an approach is being proposed by the Hansard Society in its delegated legislation review, due to be published later this month, which I commend. Such new powers should be accompanied, as the Hansard Society proposes, with other measures that have at their heart a new concordat between Parliament and government that would establish a clearer boundary between what should go into Bills and what should go into SIs. If that approach were to stand any chance of success, all the main parties would need to sign up to it in advance of the next general election and include such proposals in their manifestos. This is a good time to contemplate that, and I hope very much that the parties will do so as they are beginning the process of putting together their manifestos.
However, the next election is not being held tomorrow. For the next 12 to 18 months, we have to decide how to deal with legislation either currently before us or that will reach us at a later date. There are two ways in which your Lordships’ House can and should exercise its authority if it feels that the Government are taking too much arbitrary power. First, as a Bill goes through the House, we should make it clear that when we see too extensive delegated powers we are prepared to vote against them at clause stand part. Even the threat of doing this can sometimes concentrate ministerial minds, as we saw with the Schools Bill. If the Government insist, we should put the matter to a vote. If the whole Bill is little more than a skeleton Bill, we should in extremis be prepared to vote against the Bill as a whole. Secondly, when, as happens from time to time, the Government bring forward SIs based on existing legislation that the House thinks goes beyond what was envisaged when the Bill was debated, or that are simply badly drafted, we should be prepared to vote against them. The noble Lords, Lord Liddle, Lord Norton, Lord Sandhurst and Lord Cormack, and my noble friend Lord German and the noble Viscount, Lord Stansgate, among others, suggested that as an option. I realise that those on the Opposition Front Bench are opposed to this proposal in principle; they will not do it, in case the Conservatives do it to them if and when they are next in government. However, this is not a principle but a political calculation.
I know that many on the Cross Benches are concerned that voting against an SI breaches the conventions but, as a number of noble Lords have said, the Lords has always had the power to say no in extremis, and it should be prepared to exercise it—not on a regular basis, but when an SI is particularly deficient. The only alternative to taking this action is that we simply let the Government get away with it. No volume of condemnatory speeches and no regret Motions have the slightest effect. The Minister might be slightly discomfited, but frankly that is a small price that the Government are very willing to pay to get their measure through.
For the world outside Parliament worried about a cost of living crisis and a collapsing NHS, today’s debate must seem a mile away from their day-to-day concerns, but the effectively unfettered use of ministerial power will affect many aspects of their lives. It is not what they expect of their democracy—and they are right.
My Lords, this has been an excellent debate. I start by thanking the chairs of the committees, the noble Lords, Lord Blencathra and Lord Hodgson, for their excellent introductions. I also want to thank all members of the committees for their hard work in producing these reports. We have heard that both committees collaborated closely, producing parallel reports and holding joint evidence sessions.
Crucially, as we have heard this afternoon, the overwhelming message is that the abuse of delegated powers is, in effect, an abuse of Parliament and of democracy. Despite the response from the Government, these reports, as the noble Lord, Lord Blencathra, reminded us, will be a prompt to strengthen Parliament in the coming years.
It is worth repeating the words of the noble Lord, Lord Hodgson. This is not a debate about Lords versus Commons; it is a discussion about how we strengthen Parliament. I will not be tempted to comment on what we might be able to do in Opposition and then as a Government. The fact is that our democracy is a parliamentary democracy, and it is how we strengthen Parliament that is now most important.
The conclusions of the DPRRC report are that it is now a matter of urgency that Parliament should take stock and consider how the balance of power can be reset. As it says, far too often primary legislation is being stripped out by skeleton provisions and, with the inappropriate use of wide delegated powers, it is increasingly difficult for Parliament to understand what legislation will mean in practice and challenge its potential consequences. We have heard numerous examples from across the House of such legislation being put before us, including Bills that are currently before the House.
Importantly, the committee’s report refutes the argument that parliamentary legislative procedures cannot respond swiftly to address urgent, unforeseen situations. As part of my responsibilities as shadow FCDO spokesperson, I have been involved in work on the war in Ukraine. We worked with the Government to ensure a speedy response to a very difficult situation. It did not avoid parliamentary scrutiny, but meant working collaboratively to address the urgent issues. Of course, both Brexit and the pandemic are other good examples of that.
The committee’s analysis of the historical account of delegated legislation shows there have been times when the Government of the day have been impatient of parliamentary legislative constraints. However, as the noble Lord, Lord Norton, says, Parliament rightly demands patience in fulfilling its most important role: making our laws—and making them good laws.
One of the things that I have done is work with the noble Lord, Lord True. We have had debates on Bills before this House in which we have pointed out that clauses had unforeseen consequences. To be fair to the noble Lord, Lord True, he has supported the Opposition in taking clauses out of Bills where that has happened, and I thank him for that. It is important that, in this debate, when we are critical of our procedures and of some of the things that the Executive do, we stress the importance of the work of this House and how well we do it. I do not accept that we do not force the Government to change—because we do. More often than not, 90% of the changes that we make are not via votes and defeating the Government; they are by winning the argument and making the case, which sadly does not happen too much down the other end. But we do it here, and that is really important.
The recommendation in the SLSC report that Parliament and the procedure committee should follow a special procedure for skeleton Bills with substantial delegated powers was rejected in the Government’s response. They argue that Parliament is able to consider each Bill on its own merits, and agree or disagree to delegating powers. In reality, of course, the ability to do this limited. As the DPRRC noted:
“The limits on Parliament’s ability to intervene in delegated legislation places an even greater significance on ensuring the appropriateness of the delegation in the first place.”
The tax credits situation is a really good example of that. It is also a good example of where we did not use our powers to push down something; we used them in an innovative way to say to the other place that it should think again. The problem that the Government of the day had in that situation was that they were not confident that they would have a majority in the elected House. Our role was not to abrogate the responsibilities of the democratic House; it was to say to the democratic House, “Here you are; think again”. That House was prepared to think again and changed its mind. That is the important thing in this debate.
The Opposition supports these committees’ recommendations. Substantive components of policy should be decided and presented via provisions on the face of a Bill, not devised and introduced by secondary legislation after a Bill becomes an Act. We have had many examples of that recently. I hope that the Minister could, at the very least, consider consulting on the merits of creating a new procedure for skeleton Bills. I hope that there will not be a closed-door situation here. The Government’s response to date on the recommendation that there should be fewer cases of poor practice and the improper use of secondary legislation and guidance is not convincing. Departments need to improve their efforts to ensure that a clear and appropriate distinction between legislation and guidance is maintained. The pandemic highlighted the inadequacies of this process.
The SLSC was not convinced by the answers it received in evidence about why sunset clause provisions are not used more often as a matter of good practice. I have moved amendments myself in recent times on why a sunset clause would be appropriate. The Government could now, of course, also consider a greater use of various forms of sunset clauses, such as a sunset and renewal clause.
In the Government’s report The Benefits of Brexit: How the UK is Taking Advantage of Leaving the EU, the Government said that they would
“provide guidance to departments on the use of sunset clauses in regulations and Legislative Reform Orders, including when they should be used”.
I would welcome the Minister sharing this guidance with the House, so that it could be formally reviewed. I realise that it may already be available, so I would welcome the Minister writing to me about it, particularly on the circumstances in which the Government consider sunset clauses should be used.
I am running out of time. I wanted to address a number of issues, particularly with regard to Henry VIII powers. Perhaps the Minister could tell us what progress has been made towards the DPRRC contributing to the Office of the Parliamentary Counsel delegated powers training sessions. As noble Lords said, this is a debate where we do not have to wait for legislative change. There is policy and practice that we can influence, which is why it is so important that these committee reports are reviewed properly on a regular basis.
My noble friend Lady Armstrong mentioned the importance of civil society. In fact, a lot of our work in reviewing legislation involves engagement with civil society and how we hear other voices. Here I take the opportunity to congratulate my noble friend Lord Prentis on his excellent maiden speech. That speech highlighted that our work is not limited to listening to ourselves; it is about how we reach out to communities, and support and confidence in our democracy is about how we engage with our communities. One of the things I have heard is about how we take back control. Certainly, taking back control is about how we empower our communities; how do we ensure that power is devolved to our communities and our towns and cities?
I conclude by saying that I have read the Hansard Society’s initial recommendations, which are due to be published, and I certainly think, like my noble friend Lord Hendy, that a new concordat between Parliament and government that sets out principles of legislative delegation would be a really good starting point. I hope the Minister can support the principle of that being adopted.
My Lords, on that last point, obviously I look forward to seeing the Hansard Society report in full when it comes out; it has been referred to by a number of noble Lords, and I will address that at that stage.
I start by congratulating the noble Lord, Lord Prentis of Leeds, on his excellent maiden speech. My beloved only brother, who died a few years ago, was for decades a member of the noble Lord’s trade union, first as NALGO and then as the amalgam. I once asked him, “What’s this Prentis like?” and he said, “He’s not one of the worst.” I have to say that having heard his speech today, he is clearly one of the best. That was one of the best maiden speeches that I have heard, a gracious maiden speech, and we look forward to hearing a lot more from the noble Lord and to his contribution to this House.
I feel that I am in an odd place here, because I started serving your Lordships’ House as private secretary to the Leader of the Opposition in 1997. I suppose I am a poacher turned gamekeeper now, but I retain something of the poacher’s heart. I love Parliament, and I have listened with great attention to this debate and understand the gravity of the issues raised and their importance to your Lordships’ House. I will not just reflect carefully on what we have heard and what we have read in the reports, as Ministers always say, but will consider ways in which we can have further discussions on some of these matters.
I thank my noble friend Lord Blencathra and the DPRRC, and my noble friend Lord Hodgson of Astley Abbotts and the Secondary Legislation Scrutiny Committee for their recommendations on this issue. I also thank all noble Lords who contributed today. Someone said that it is a disgrace that we have had to wait so long. My noble friend the Captain of the Gentlemen-at-Arms and I have been in these places for only a short while. We have sought to bring committee reports to your Lordships’ House and we will continue to do so to the best of our abilities.
I do not come to defend big Bills. I share the view of the ancient Greek poet that a big Bill is a big evil. Large Bills can certainly frustrate the process of orderly discussion just as much as skeleton—as they are described—Bills may. We need to reflect collectively on both of those matters and whether either of those extremes are the right way to go forward.
It has been a challenging and powerful debate. I have listened to it not only as a government Minister but, as I said at the outset, as Leader of your Lordships’ House. At times it has left one conflicted. It is in my part as Leader of your Lordships’ House that I repeat that I will reflect carefully and consider with colleagues the important points made today. I am old enough and conservative enough, like the noble Lord, Lord Lisvane, who said in his important speech, along with others, to think that there was much to be said for some of the old ways of preparing and carrying legislation. This sentiment was shared by many of your Lordships.
As a member of the Government, I am also a member of the committee examining future legislation, to which the noble Lord, Lord Newby, referred. In government, I am not alone in believing that there needs to be a check on some of the perceived line of direction. In the last few years, all departments have been asked to appoint a Minister and senior official to be responsible for secondary legislation. Although departments are responsible for the quality of their own secondary legislation, Ministers can be—and are—asked to account for their department’s performance to the PBL Committee. All statutory instruments must now go through a PBL triage process, which is relatively new. Departments are given laying dates to limit the number of statutory instruments having to be considered at any one time by Parliament. Through this, we try to ensure that there is a steady flow of statutory instruments being laid before Parliament to facilitate scrutiny by your Lordships. These changes have strengthened the Government’s approach to secondary legislation.
The former lord president of the council, my right honourable friend Jacob Rees-Mogg, wrote to the DPRRC and other committees of your Lordships’ House setting out explicitly that
“Bills with substantial powers, though sometimes essential, should not be a tool to cover imperfect policy development.”
I think many of your Lordships have said that today. Those should not be empty words; I do not think my right honourable friend meant them to be. I hope that the PBL Committee will be able to live up to what the former lord president said.
As the noble Lord, Lord Hutton of Furness, said, a central question underlying this debate is about the balance of power between the Executive and the legislature. It is right that Parliament should challenge, as these reports do, and as your Lordships have done today. My strong belief is that the starting point of the balance is that Parliament must have what it needs to scrutinise legislation. This is in all Governments’ interests, as the noble Lord opposite implied. I stated previously that the quality of legislation is improved by properly conducted scrutiny and dialogue within your Lordships’ House and elsewhere.
There have been so many points raised in the debate. Of course, the dreaded words “Henry VIII” emerged from many mouths, starting with my noble friend Lord Blencathra and finishing with the noble and learned Lord, Lord Judge. The 1539 Act was obviously an undesirable constitutional development. I agree, and noble Lords will be pleased to hear that the Government agree, that powers to amend primary legislation must be strongly justified, precisely drawn and clearly defined. I agree with my noble friend Lord Blencathra and so many others that vague, sweeping powers are inappropriate. Each new power that the Government ask of Parliament is considered on its own merit within government, and of course in your Lordships’ House.
As set out in the response to the Delegated Powers Committee’s report, we are working to improve awareness of appropriate use of powers across Whitehall through existing guidance and the continuation of training on the sorts of factors that must be considered when determining whether they are justified. We will expect departments to continue to publish their justification for any Henry VIII power in the delegated powers memoranda that accompany each Bill.
My noble friend from the Cabinet Office was here for the end of the debate, and I am sure that she will have heard the interesting suggestion that DPRRC and other input could go into the training for civil servants and those drafting and preparing legislation. I know she will reflect on the suggestions put forward. I cannot, however, promise what the outcome of that reflection might be.
A lot has been said about the sub-delegation of power and disguised legislation. I think that this is a serious issue. There is a huge acquis which goes back through legislation over decades in relation to delegated and disguised powers, and powers which are operated by bodies below the level of the Government. It is something which we need to consider and think about. The Government continue to uphold the presumption against the sub-delegation of legislative power and therefore would expect any provision in a Bill which allows novel sub-delegation to be fully justified. The Government will update existing guidance for drafters to make it clear that the policy background section should provide an explanation of any proposed legislative sub-delegation.
Pre-legislative scrutiny was advocated, quite rightly, by a number who spoke. We are committed to pre-legislative scrutiny where possible, as there are often real, recognised benefits to doing this. I agree with those who made that point. My right honourable friend the Leader of the House of Commons wrote to the chair of the Liaison Committee on 21 June to confirm the Government’s approach to publishing Bills in draft. This Session we are planning for pre-legislative scrutiny to take place on a range of Bills: already published are the draft victims Bill and the draft mental health Bill, and later this Session we will publish the draft protect duty Bill and the draft media Bill. The Government will continue to consider which Bills would benefit most from pre-legislative scrutiny and inform Parliament in the usual way. However, in some instances, it is not practical; for example, immediately after a General Election or where an immediate legislative response is required.
The noble Lord, Lord Hodgson, asked at the outset about post-implementation reviews, and that was a recommendation in the report. The Government note this recommendation, but the PIR process is now being reviewed as part of the proposed reforms to the Better Regulation framework. Government publications relating to legislation, including a PIR setting out the conclusions of the review, should be published online alongside the relevant regulations. The Better Regulation exercise is working with the National Archives to update guidance for departments to ensure that PIRs are published online. In addition, the National Archives is exploring options for improving the accessibility of PIRs.
A number of noble Lords, beginning with the right reverend Prelate, and including the noble Lords, Lord Goddard and Lord Liddle, the noble Viscount, Lord Hanworth, and others, referred to Brexit and indeed to the retained European law legislation as a difficult case in point. Well, we will see what happens when that Bill comes to your Lordships’ House. I comment only that it arises from a mass of legislation that was imposed, without any effective scrutiny, on this Parliament for over 40 years.
A challenging speech was made by the noble Lord, Lord Liddle, and the sentiment was taken up in a thoughtful speech by my noble friend Lord Norton of Louth, with loud murmurs of assent from the Liberal Democrat Benches, which were then voiced by the noble Lord, Lord Newby. Others called for a power for your Lordships to reject statutory instruments or some power to amend. This arose—many noble Lords referred to it—in the context of the tax credits regulations in 2015. That precipitated the review by my noble friend Lord Strathclyde.
This House retains the power and the right to examine statutory instruments laid before it, and the Government support the Motion passed by this House in 1994:
“That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration”. ”.—[Official Report, 20/10/94; col. 356.]
How nice it was to have the memory of the great Lord Simon of Glaisdale evoked by the noble Baroness, Lady Fox. How well I remember that voice rising from those Benches. The Government agreed with my noble friend Lord Strathclyde’s review on this that in that case the will of the elected Chamber should prevail. There is no mechanism for the elected Chamber to overturn a decision by this House on statutory instruments. The Government said at that time that it was not something that could remain unchanged.
I counsel caution in this area. I note the sabre rattling that was heard today, and I also understand the frustrations which lay behind some of that. After all, part of the answer, as the noble Lords, Lord Collins and Lord Newby, said, is to attack some of the issues that cause the frustration; for example, the scale of the delegation that is perceived. I think that untrammelled power should be considered carefully before being used.
It was in 1998 that the then Leader of the House, Lord Richard, described the DPRRC as
“one of the most effective weapons in the armoury of parliamentary scrutiny”—[Official Report, 13/5/1998; col. 1088.]
and how true that still is today. I certainly feel I have had a weapon at my throat. It is still the case for both committees, and the Government continue to take their work extremely seriously as a central contribution to parliamentary control over the Executive.
On delegated legislation in general, rather than so-called skeleton legislation, the Government must always seek to ensure that there is an appropriate balance between the detail in the Bill and the ability of the Government to deliver for the public, business and the country. Many noble Lords have recognised that that balance has to be struck. The ability to act quickly, the need to ensure that proposals are scrutinised appropriately and the effective use of parliamentary time must also be considered and judgments made. There will inevitably be times when the Government and parliamentarians disagree on how to weigh these considerations, and Governments must always seek to provide Parliament with the justification for their proposed approach. It is a matter of concern that your Lordships so widely feel that this balance is not currently being respected.
I was asked by the noble Lord, Lord Janvrin, why we could not accept the call to declare Bills skeleton Bills. Your Lordships’ report itself noted in paragraph 37 that a precise definition of “skeleton Bill” or “skeleton clauses” would be difficult to prescribe. There was one suggestion that the Speakers might do so, but there is no analogy between Mr Speaker in the other place, who has no authority here, and the Lord Speaker, who has no authority in the other place.
Surely, what is more important than defining Bills of this type is that the Government should bring forward legislation in orderly time, effectively drafted, to fulfil their policy intent. With it, the Government should publish a full justification for any delegated powers they are requesting. Governments must work productively to ensure that Parliament has everything it needs to hold government to account. If the Government do not do that, they are not doing what they ought to be doing. Noble Lords are outstanding in their ability to scrutinise legislation and are pretty fast in sussing out when departments have not done all they need to do, and I will undertake, as Leader of your Lordships’ House, to try to be on the case.
The culture in Whitehall was referred to, and I referred to that briefly. My noble friend was not very kind about the Cabinet Office’s Guide to Making Legislation. We will have another look it. My noble friend sitting by me will, I am sure, take that away. We are making progress, we think, in training officials and Ministers on the use of delegated legislation—but we will continue at it. The training programme focuses on many aspects of the secondary legislation programme.
The Government recognise that impact assessments and cost-benefit analyses were not always possible because of the emergency nature of Covid-19. However, we must learn for the future if we are to improve policy decisions and deal well with major challenges. What is needed when significant SIs are made, even in an emergency, is a simple assessment of costs and benefits, including knock-on interventions and costs. In the case of Covid lockdowns, these might have included a range of estimates—the increase in waiting times for cancer and other operations, the impact of school closures and other harms. As we said in our response to the Government by Diktat report, we agree that the provision of impact assessment is important to be able to fully consider the impact of policy changes. We will also look at that in relation to the points raised on secondary legislation.
I must conclude now, but I will simply reiterate the point that it is a difficult balance here. There are frustrations, but important issues have been raised and, as Leader of your Lordships’ House, I will not only consider those myself but take the substance of this debate into wider consideration.
My Lords, first, I wish to congratulate the noble Lord, Lord Prentis of Leeds, on his excellent maiden speech, made in the finest traditions of this House. I was particularly grateful for his powerful contributions in our report, which I did not expect from a new Member but am very grateful for. I think I and the whole House welcome and respect those who come to this place after a lifetime of experience, whether in business, politics, farming, trade unions or other trades and professions. In the Commons, I always liked and got on well with Ronnie Campbell MP, who was the authentic voice of mining. Of course, Ronnie voted against Tony Blair a lot, which was another reason I rather liked him. Today, we have heard the authentic voice of the noble Lord on trade unionism, with his vast experience, and I can tell him that, if I am called upon to form a Government of national unity, he shall have a place in my Cabinet. We all look forward to hearing from him again in the future.
Turning to our reports, I too wish to play a glowing tribute to the clerk of both our committees—Chris Salmon Percival. She is the clerk for the Delegated Powers Committee and the Secondary Legislation Scrutiny Committee, and that is handling a massive amount. Every Bill that comes to this place, she and her team handle it—and the thousands of SIs which go through each year. When I came up initially with the idea of this, I had some wild ideas for what we should cover. Chris put it into the sensible structure we have seen in the report. She then spent 12 months analysing in detail and researching, going back to the 1920s and then doing the draft report. She reminded me of the late and magnificent Lord Armstrong of Ilminster. I asked him a few years ago, “Robert, when you were writing up Cabinet minutes, did you write out the details of what the Minister said or just a summary?” He said, “Oh no, dear boy, I wrote out what the Minister would have liked to have said if he had thought of saying it in the first place”. That was rather like my report.
I am very grateful to all 35 Peers who have taken part today. If my sums are right, 34 of them were in complete agreement with our report and the general thrust that we have too much inappropriate delegation of power. I am very grateful to my noble friend the Leader for his largely supportive remarks, within the brief he has to stick to. I rather like to think—I wonder whether other noble Lords agree with me—that if perhaps my noble friend the current Leader had been in his post 12 months ago, we might have had a slightly different response to our report: a more amenable and agreeable one.
I will not attempt to summarise anything today, since I could never do it justice, we would be here for far too long and the speeches speak for themselves. I will pick up just two little points. I rather liked history and thought I was quite good at it. I think I got an A in my Scottish Highers and I knew about Henry VIII. But I can tell this noble House that in my 27 years in the Commons, 10 years as a Minister and four as Minister of State in the Home Office, bashing through a huge criminal justice Bill every year—which your Lordships largely rejected—I never once came across the term “Henry VIII powers”. I suspect that in all Governments—the noble Lord, Lord Rooker, told me this—Cabinet Ministers get to hear of it when a private secretary comes in and says, “Minister, would you sign this letter we are sending back to the Delegated Powers Committee?” “What’s it about?” “Oh, they’re complaining about Henry VIII powers.” “What are you talking about? What are Henry VIII powers?” I am fairly certain that is the case, and I would love to see that proved.
My second point is that we often got delegated powers memoranda that said, “Of course, we’re taking this extraordinary power, but the Minister doesn’t intend to use it, or won’t use it in this way or that way”. We always replied by saying, “It’s not how the current Minister says he or she is going to use it, it’s how the law says it could be used by any future Minister”.
Of course, there is a wider debate to be had on the whole way in which secondary legislation is made, especially now that we are out of the EU. That is a very valid discussion to have, and noble Lords have raised some of the points today. I would love to see that discussion take place on whether we amend SIs, ask the Commons to think again or have a refer back procedure or sifting committee, which worked remarkably well for the EU withdrawal Bill. But our Delegated Powers Committee report is not asking for any of that. I do not want to hear an excuse that our report is rejected because we are opening up a whole can of worms on how SIs are made and government would grind to a halt. All we want is proper scrutiny under the existing system. The worst the Government would have to do with our delegated powers report would be that Lords Ministers would have to do some more affirmative resolutions, either in this Chamber or in the Moses Room. That is not too high a burden to place on government.
I do not want to go through the Leader’s excellent speech in detail, but I am certain that we shall study it in detail in Hansard later. All I will say is that I rather welcome his tone that further discussions are necessary. I will make a suggestion to him—one of two suggestions I shall make. I refer to the 2019 Conservative manifesto, which states on page 48:
“In our first year we will set up a Constitution, Democracy & Rights Commission … and come up with proposals to restore trust in our institutions and in how our democracy operates.”
Of course, that was aimed at human rights law, judicial review and so on, which I now understand are off the table, but I suggest to my noble friend the Leader that we tweak that manifesto commitment promise and have a special Joint Select Committee of our Houses to look at how secondary legislation is done in future. Then the Government could spin it in the next manifesto that they implemented that promise.
I see the noble Lord, Lord Collins of Highbury, smiling. I think I noted that he said that the Opposition were completely in support of our report. I look forward to that firm commitment in the Labour Party’s manifesto.
My final request to my noble friend is this. I would like him to send 60 hard copies of today’s Hansard—not just a link—to every person drafting Bills in the Office of the Parliamentary Counsel. They need to read the real reason why the House of Lords is “difficult”. Perhaps then they will draft laws taking into account our legitimate concerns about parliamentary democracy and proper parliamentary scrutiny—and then they may find that the House of Lords ain’t so difficult after all.
My Lords, it was 12.09 pm when my noble friend Lord Blencathra got to his feet, and now it is not far short of 4.09 pm, so I shall be extremely brief. I begin by adding my thanks to the noble Lord, Lord Prentis, for his extremely splendid maiden speech, and I add my thanks to the clerks, to Christine Salmon Percival and the team at the SLSC. I thank all Members of the House who have spoken today. We have had some tremendous speeches, and a rich menu of suggestions and ways forward have been put forward for us to consider and reflect on. If the House will forgive me, I would particularly like to thank my fellow members of the SLSC who have taken the trouble to come along and speak today.
I was not surprised, but I was very pleased, at the degree of Back-Bench support from across the House. The road to constitutional reform will be rocky, long, steep and stony and it will be traversed only with a maximum degree of cross-party support from the Back Benches. It will be vital that we reach out to our similar-thinking colleagues in the House of Commons, again on a cross-party basis, or the slur that this is the unelected Lords trying to tell the elected Commons how to do their job will be game, set and match.
I say to the noble Lord, Lord Collins of Highbury, that I recognise what a difficult line he had to follow, with the seductive thought of government, perhaps, within a couple of years. As my noble friend Lord Blencathra said, he dealt with that well. I am delighted to hear his support for the recommendations. I think that he and his party hold an important key, to unlocking the way forward in this particular regard. Without wishing to flatter him, he has a particular responsibility and ability to make things happen, if he and his party so wish. So, we will be watching carefully what he thinks about this in a more measured way.
Finally, my noble friend, the Leader of the House is as ever a polished and practised parliamentarian. He does not give much away; he always gives a very well-thought-through performance, which I enjoy hearing. I am grateful to him for his reassurance about various aspects of impact assessments. I was also grateful for his undertaking to reflect on what we have been doing. As a background to that reflection, I remind him of Admiral Beatty’s saying at the Battle of Jutland. He said:
“Damn the torpedoes, full steam ahead”.
If that was the conclusion of his reflections—that we should go full steam ahead and damn the torpedoes—I think that would be a mistake.
Government by Diktat (SLSC Report)
Motion to Take Note
Preparing for Extreme Risks (RARPC Report)
Motion to Take Note
My Lords, we thought we were well prepared. Roger Hargreaves, the director of the Civil Contingencies Secretariat, told us that our national security risk assessment was recognised very positively by Governments across the world, who regarded it as a gold standard for the assessment of risk. The risk of a pandemic was ranked as a highest-priority, tier-1 security risk. Okay, we thought that it would be a flu pandemic, but we were told that, if it were a coronavirus pandemic, it might lead to up to 100 fatalities. Some 211,000 deaths later, we now know that that was an underestimate. We also know that the initial chaotic reaction to the pandemic, not just in the UK but in other countries as well, showed a lack of preparedness that did not justify what can only be described as complacency. This led the Astronomer Royal, the noble Lord, Lord Rees, whom I am delighted to see in his place today, to approach the powers that be to suggest a special Select Committee to examine the ways in which we, first, assess and, then, plan for all manner of risks.
Ours was not a Covid committee, although we learnt from Covid: the country and the world face many different risks, from climate change to volcanos and from solar weather to the potential collapse of technology. It all sounds rather gloomy, which indeed it could have been—and no one would accuse me of being an optimist. But we considered many respects in which our processes could be improved so that we might be able to mitigate some of the threats that we face.
The committee was drawn from a wide range of different skill sets and experience. I pay tribute to the members of the committee for their expertise, dedication and sheer engagement. I think they enjoyed it—I know I did. We were supported by a superb team of House of Lords staff, to whom we could not be more grateful: Beth Hooper and Alastair Taylor, our clerks, and Sarah Jennings, Rebecca Pickavance and others. Your Lordships are lucky to have the quality of help that we received; our work simply could not have been done without it. We also had the benefit of the wisdom and experience of our specialist adviser, Professor David Alexander, professor of emergency planning and management at UCL, to whom we also owe a great debt.
Having thanked the committee and those who helped us, I should also thank the many people who spent a lot of time giving us evidence, both oral and written. I have not counted how many—let us just say that there were lots. It was high-quality stuff, not least from the noble Lord, Lord Harris of Haringey, whom I am pleased to see in his place. I declare my interests, as set out in the register, including as chairman of a resilience advisory company and of the advisory panel of Thales UK.
What we found was this. The risks that we face are changing, and changing faster and getting larger day by day. Technological advances have been a great boon to mankind, but they have brought with them a new dependency on things like electricity and the internet and the threat of the malicious deployment of technologies that previously did not exist. But Governments cannot deal with these risks alone, which is why we were, frankly, dismayed to find, in our evidence-taking, a risk-assessment and risk-management process that was secretive, opaque and centralised. It needs to be just the opposite: it needs to involve the whole of society, up and down the country.
The devolved Administrations are, within their territories, the part of government that needs to respond to threats, so it makes no sense that they have the feeling, as they do, that they are excluded from the loop on risk. Businesses are well used to assessing and managing risks. That is what the insurance industry, for example, does as its day-to-day work. The Government should work with the insurance industry to explore mechanisms which allow for the transfer, management and mitigation of risks which are too large for the private sector to address alone.
Voluntary organisations and communities leaped into action when Covid struck, and they would be ready to do so again. We had things to say about local resilience forums, which we felt should be given appropriate resources and brought properly into the process. Scandinavian countries do that well. Sweden, for example, has issued a pamphlet to every household entitled If Crisis or War Comes, with useful information on food, water, warmth, communications and general preparedness. We can learn from, and should work closely with, the international community to improve our resilience. The Swedish pamphlet was well received and well remembered, which counters the fears that British Governments have had of not wanting to worry the people. People will be less worried if they feel better prepared. The British people should not be treated like mushrooms; they are a valuable resource in times of danger.
When I say that the Government cannot do this alone, I mean that, to avoid complacency and groupthink, we found that they should lay themselves open to independent challenge. That is not easy for Governments, but it is essential. It is, in a sense, the whole point of democracy, and in the Ukrainian disaster we have seen the consequences of an absence of challenge to a dictator. For that reason, we recommended the establishment of an office for preparedness and resilience headed by a new post of government chief risk officer. The OPR should have a standing expert advisory council to provide independent challenge, oversight and strategic direction.
All these preparations should lead towards a comprehensive set of resilience plans. If the first time you try to set up a response to a crisis is when it hits, it is too late. If you do not have the tried and tested relationships between the emergency responders, formed over years of planning, training and exercising, it will be much more difficult to deal with the crisis. Last-minute improvisation is the enemy of good crisis response.
The Government’s old approach was too siloed. They examined risks on the basis of their likelihood as against their predicted impact, but did not include in that trade-off the key issue of our vulnerability to a particular risk. They took little account of cascading risks, and even less of those risks that they regarded as low risk, even if their impact would be very great. An example that no one will be surprised to hear me raise is a large solar flare, such as the Carrington Event of 1859, which could have devastating consequences for our electricity grid. If the electricity grid fails, the water system would fail, because water is pumped by electricity, and communications would fail, because the mobile telephone masts would lose their power. I do not know about your Lordships’ families but, without their mobile telephones, all my family would have nervous breakdowns. That would be a cascading consequence.
Is a massive solar flare—which would certainly have a high impact—a low-risk event? Until about 10 years ago, solar flares such as the Carrington Event were categorised as a one-in-100-year risk. Because there has not been one in more than 100 years, the Government recategorised it as a one-in-200-year risk. That seems an odd approach to probability. Nevertheless, there are some things that simply cannot be predicted; solar storms are one of them, because it is not possible to predict in which direction they will travel and whether they will hit the earth. We might have none in 200 years and then two in two weeks. The proper question to ask about low-risk, high-probability events is: if such a thing happened, would we want to be able to survive it? I hope the answer is yes.
This brings us to the next matter: the difficulty of persuading a Government to prepare for things that might not happen. If you go to the Chancellor of the Exchequer and say, “We need to prepare for something the world hasn’t ever seen before and may not see for the next 20 years but which sooner or later will happen, and we therefore need you to take money away from schools and hospitals that we know we need now,” you are likely to get a dusty answer. But responsible government requires you to do just that.
All Governments must prepare, not just for the enemy at the gate but for the enemy over the horizon and for things that will happen beyond their term of office. That is the rationale behind the Successor nuclear submarines. It is difficult but necessary. A power station investment rejected 10 years ago on the grounds that it would not come on stream for 10 years could now be helping us through the cost of living crisis. We all have to prepare for the longer term. We need to invest in our pensions, building our resilience and mending our roofs while the sun is shining. A stitch in time saves nine.
One key issue our report identified was the need to develop education, training and exercising in crisis management. That is not to say that we can predict everything that will happen and prepare for it. The one thing we know about government predictions is that they will be wrong. But if you are prepared for one type of crisis, the chances are that you might be better able to withstand another type of crisis. That is more obviously true if the key elements of your preparation, education and training are flexibility, agility and diversity. Diversity in your workforce brings particular benefits in avoiding groupthink. If everyone comes from the same educational background, work experience, gender or even country, they are more likely to think alike and have gaps in their approach.
The Government’s response to our report was positive. They accepted, in principle, the vast majority of it, and the two recommendations they rejected were not central themes. However, rather than go point by point through the Government’s response, it would seem more relevant and sensible to consider the new resilience framework that the Government published last month, something they had been working on during the time of our Select Committee and which took up many of the themes of our report.
The Government espouse three core principles. The first is a shared understanding of the risks we face, which speaks to our demand for more openness. That is a noble aim. The framework, however, is shy about our suggestion of independent challenge. I suggest that, without independent challenge, the risk of complacency remains. Parliament will have a role to play in holding the Government’s feet to the fire and ensuring that the Government’s soft words actually butter some parsnips.
The second government principle is prevention rather than cure wherever possible, because a stitch in time saves nine. It is essential that the Treasury is bought into this model. That is easier said than done, particularly during a cost of living crisis. We need, as we said in our report, to avoid the traditional disincentives to invest against possible risks, especially low-probability, high-impact ones. There is something ominous in the words in the framework:
“HM Treasury will continue to ensure that the UK Government is making investment decisions which represent the best value for money.”
That is not because value for money is a bad thing—it is not—but because continuance of the Treasury’s approach is not what is needed. We need, for example, an appropriate depreciation register for critical national infrastructure.
The third principle is that resilience is a whole of society endeavour. That is excellent. Look what happened during Covid—the people are willing and able to be involved.
This resilience framework is a start. Actually, it is a good start. But it can get better, and there is work to be done. I beg to move.
My Lords, I congratulate the committee’s chair, my friend the noble Lord, Lord Arbuthnot, and thank him for his comprehensive and powerful opening speech, and for his adroit and inclusive chairing of the committee. I join him in recognising and thanking the clerks, the staff and our advisers for their exemplary support. I apologise, but if I am to have any hope of getting home today, I must leave before the winding up. I thank the Chief Whip, my own Whip, the Minister and the noble Lord, Lord Arbuthnot, to whom I have explained my predicament; they all responded graciously and generously to the situation.
The report has contributed already to improving UK resilience. The Government acquiesced in all but two of its recommendations and the resilience framework published recently builds upon the work of the committee and its findings, as Oliver Dowden acknowledged in his all-Peers letter. I welcome the Government’s publication of the resilience framework. It is the first step towards the national resilience strategy mandated by the integrated review. Its publication, like this debate, is timely. We face several risks and many threats, all demanding swift and effective response. Russian attacks on Ukraine’s critical national infrastructure serve to underline the importance of looking to our own resilience and ability to respond to such external threats. That is true whether those threats are natural disasters, driven by hostile actors or an unintended consequence of anthropogenic activity.
The major risks are well known. However, the ways in which they manifest are fluid and subject to change. Any coherent resilience strategy must respect this truth: if we are to prevent, mitigate and diminish their impact, our response must be multifaceted and as adaptable as the threats. This requires nimbleness and a data-driven approach in the Executive, as well as better ownership of risk in lead government departments, but it also requires a whole-of-society approach, as suggested by the integrated review.
I regret to say that the Government have, over the last couple of years and an even greater number of Prime Ministers, inadvertently exacerbated the risks we face through structural failures. Shortly before Covid reached these shores, the Threats, Hazards, Resilience and Contingency Committee of the NSC was quietly and ill-advisedly disbanded. In answer to a Written Question, the then Defence Secretary downplayed this development, suggesting that its functions would henceforth be performed by the NSC itself, and would not mean a loss of capacity but merely reflected
“wider consolidation of Cabinet Committee sub-Committees”.
This sub-committee has been resurrected—a clear acknowledgement that the earlier disbanding of it was a mistake, as our report identifies.
It would be helpful to have a clearer explanation of why this decision was made in the first place, to what extent it compromised our ability to respond to emergent risks with speed and coherence, and how the structural changes that the framework requires can be protected from future, ill-conceived “consolidations” of this sort. We know that data is vital in risk mitigation, but so is institutional memory. If the Government’s approach to resilience is to succeed, institutional memory must be maintained.
What evidence is there that this Government can develop, publish and implement the promised national resilience strategy at the speed commensurate with the seriousness of the risks we face? Soon it will be two years since the integrated review which mandated the resilience strategy. It has taken 18 months for the framework to be published. I welcome the promise that we can expect the strategy to be published in “early 2023”, but I would be grateful for clarity on whether, and which, measures and their implementation are contingent upon other ongoing inquiries, such as the crisis capabilities review led by the Home Office Permanent Secretary. I welcome the creation of a head of resilience, a dedicated resilience directorate and the resurrection of the resilience sub-committee of the NSC.
There is much to commend in the context of accountability, both to Parliament and through risk ownership by lead government departments. The framework promises a real cultural shift. Here, the UK’s determination to embed climate change considerations within the culture of government offers lessons. I should be interested to know if a structure analogous to the Climate Change Committee has been considered. An independent body established by statute, offering external expertise and scrutiny of our approach to resilience, which is then empowered to report to Parliament, would enhance our ability to scrutinise the promised annual statement to Parliament on resilience and provide valuable context for subsequent debates.
While supply chains, global context and societal make up ensure that different nations must mitigate risk in different ways and with different emphases, universal challenges show us that preventive work, on which the framework places a welcome emphasis, can work properly only through international co-operation. I urge reflection on the response of the Centre for Long-Term Resilience to the framework. While commending it, it asks that, in recognition of the global nature of the threats, the Government advocate for a dedicated multinational resilience forum for greater coherence of the efforts of individual nations to protect their people.
In closing, I remind noble Lords of October’s report of the Joint Committee on the National Security Strategy, as well as our own report on critical infrastructure, which was scathing about the Government’s ability to protect it. It called on the Prime Minister to
“get a much better grip”.
I trust that the resilience framework and the strategy that is promised will be a long-overdue step to getting a better grip on national security.
My Lords, I add my congratulations to the noble Lord, Lord Arbuthnot, on the excellent way in which he chaired our committee. I can tell the noble Lord that I certainly enjoyed it, and furthermore I learned a great deal; my compliments also to the staff. I think we never managed to meet in person, but did every session online, which posed some interesting challenges to do with curtains and lights and things like that. It was an extremely well chaired committee.
The noble Lord has set out extremely well the main highlights of our report, so I want to briefly pick on a couple of points. I support the overall conclusion that the culture and practice within government of risk assessment and management of resilience need to change. How we go about that should be through adopting a whole-of-society approach and looking to general resilience more than to individual threats.
Let me begin with box 1, which sets out the threat from climate change. It could have been argued that we did not really need to set out climate change because it was so obvious and over such a long period, but it is interesting to note that we are now a year from COP 26 and already it is slightly beginning to slip down the agenda. For me, it was important to see it in there because, first, the extreme risks that come from it are all going to appear with increasing severity and likelihood on the national risk register, and, secondly, it serves as a lesson of what happens when the enemy at the gate perhaps overtakes the enemy on the horizon. It is a very good example of that.
I would like to draw attention to paragraphs 136 to 141 in the report, where we talk about the devolved bodies. I can do no better than to quote paragraph 137 and Shirley Rogers, director of performance, delivery and resilience for the Scottish Government, who said:
“There is a variable degree of understanding about what devolution settlements look like and what devolved Administrations’ powers are … My observation is partly that there is a tendency to treat us as if we are a department and consult us on the things that people think we will need to know about, rather than the totality.”
Correcting that is central to the Government’s approach.
I would like to comment on how we look at resilience and go about risk management. Currently, risk is looked at as identifying a single threat, rather like on your company risk register, and looking at how it can be mitigated. The risk is seen as a barrier to achievement. However, what I learned in the process of our committee’s deliberations was that extreme risks are not like that; they are things that we cannot avoid, and therefore we have to look at them in a different way. As the noble Lord has already pointed out, this needs a change of culture.
The resilience that we need comes not from looking at the individual threat but at all of the things that cascade together and ensuring that there is resilience in depth. That requires an investment, and that comes back to the Treasury. This is not about a cash spend that is going to be made in-year; this is about identifying something that will be invested in, and resilience automatically implies redundancy. There will be some part of the spend that will never be used, and we have to accept that as being central to what we are trying to do. If we do not understand that, just look at the supply chain and the fact that all the chips were being made in countries that are having grave difficulty, and now we cannot make cars in anything like the way that we would want to.
In the first 22 years of this century, we have had three extreme events: first, a financial crisis which cost us hundreds of billions in support; secondly, a pandemic, which was number one on the risk register but we got wrong, and which cost hundreds of billions in support for the country; and, thirdly, since our report came out, a war in Ukraine which was not particularly anticipated. I am sure we will have three more events in the next 20 years and that they will not be the ones that are predicted, so we have to have resilience to be ready for whatever may come. In that regard, I think the most important thing the chairman of the committee, the noble Lord, Lord Arbuthnot, said is about getting the Treasury to change the way it looks at these things. We have to try to get the Treasury away from its complacent, cash-book comfort zone and into looking at investment for the future.
Ultimately, in any organisation, risk is the responsibility of the chief executive or the accounting officer. We need to put responsibility for risk higher up. We need a chief risk officer, and for Secretaries of State and the Prime Minister to take the responsibility.
My Lords, I add my tribute to the noble Lord, Lord Arbuthnot, for his benign and effective chairmanship of this special inquiry, which illuminated crucial issues that are still underdiscussed. Indeed, we are still in denial about a whole raft of newly emergent mega-threats, which will be the focus of my remarks.
We are increasingly reliant on vulnerable globe-spanning networks for food supply and manufacturing, and novel viruses more virulent than Covid-19, perhaps even artificially engineered, could emerge at any time and spread with devastating speed. Our interconnected society is ever more vulnerable to other scenarios—massive cyberattacks, cascading failures of crucial infrastructure, or even accidental nuclear war—whose likelihood and impacts are rising year by year. Covid-19 must be a wake-up call, reminding us that we are vulnerable. Such worries cannot now be dismissed as flaky doom-mongering.
What does it take to enhance the UK’s preparedness for future threats? The first need is better joined-up government. Covid was primarily a medical catastrophe, but it cascaded into other sectors, including schools and, through its impact on supply chains, manufacturing. We have learned lessons about the trade-off between efficiency and resilience. For instance, there need to be firmer guidelines about who—regionally as well as centrally—has authority in emergencies.
Secondly, we need to optimise the use of limited resources in preparing precautionary measures. For that, we need a more rigorous assessment of what scenarios are most probable. As has been said, the published risk register has hitherto been inadequate. There is little input from external experts and too much secrecy, and no pandemic other than flu was rated a major threat. Moreover, the quoted likelihoods pertain to the next two years, but that is not enough when the threats may be rising year on year, as they surely are for engineered pandemics and massive cyberattacks. We need to plan maybe 20 years ahead.
As we have heard, the Government’s recently announced national resilience framework is welcome. It proposes a new institutional architecture to raise the profile of resilience within government and Parliament, with, as we recommended, a head of resilience equal in rank to the National Security Adviser; an annual parliamentary statement on resilience; a new national resilience academy to train up a new generation of risk-management professionals across relevant sectors; and a national exercising programme, embracing both military-style and virtual reality exercises to test our resilience to a range of risks. This measure was, incidentally, forcefully advocated by the two former Defence Secretaries we were lucky to have on our committee.
The credibility, acumen and perseverance of the first person appointed as head of resilience will be a crucial determinant of where the scheme as a whole ends up by fostering practical and effective action of the kind that our committee recommends. Also crucial is whether the Chancellor signs up to spending whatever sums of money—probably quite modest—are needed to implement the framework’s proposals. Given these prerequisites, we would be on the verge of making real progress.
However, cross-party consensus on the institutional framework is essential if we are to properly address measures that stretch far beyond the timescales of a single Administration. A good start, already signalled by the shadow Paymaster-General, would be a manifesto commitment to nominate a Cabinet-level Minister with full-time responsibility for resilience. Moreover, the Opposition could add a series of substantive points not fully covered in the framework—in particular, establishing a statutory, independent resilience institute on the model of the Climate Change Committee or the Office for Budget Responsibility that can report to Parliament on the reality or unreality of the claims for resilience being made by relevant Ministers. That again was recommended by our committee. The UK should lead campaigning for the international co-operation that is needed to minimise the extreme threats, which are global—as most are.
If the Government vigorously implement their new framework, and the Opposition push more vigorously in these directions, then our democracy will be working as it should to protect society from catastrophe.
My Lords, I, too, am grateful for the Select Committee’s work in tackling such an important subject and, in particular, I concur with the authors’ recognition that,
“the UK must move away from a risk management strategy which … often ignores or fails to appreciate the interconnected nature of our society”,
and that we must instead,
“produce a risk management system that ties all sectors of society together.”
Interdependence is a fundamental part of human nature and policies that follow the grain of that nature are far more likely to succeed.
I was disappointed, therefore, that although the report advocated for a whole-society approach, no reference was made to the role of faith groups in emergency planning and response. Faith groups and leaders across the country were an integral part of the response to Covid-19. A 2020 report by the All-Party Parliamentary Group on Faith and Society, based on research with local authorities, found that faith communities were instrumental in local responses by offering buildings, running food banks, information-sharing, befriending, collecting, cooking and delivering food, and providing volunteers for local authority programmes. Accordingly, the APPG found that local authorities developed a new-found appreciation for the agility, flexibility and professionalism of faith-based organisations, and that local authorities were keen to continue and build on those relationships in the future.
When I consulted with my own local public health team, I heard a similar account. In Leicester, throughout 2020 and 2021 there was a fortnightly faiths engagement group that brought together public bodies with faith leaders to co-ordinate how to translate and disseminate important messages about the virus itself and the associated restrictions. Our city’s director of public health, Professor Ivan Browne, told me: “I would argue that any strategic document that in any way considers a community response to a crisis must consider the role of community and faith groups.” Another example would be the 2016 floods, when Khalsa Aid, a Sikh charity, together with groups of Muslim volunteers, spent weeks in the affected towns in Lancashire and Yorkshire, serving thousands of hot meals and helping with the clean-up.
Across the UK, when there have been terror attacks or explosions, churches have opened to offer shelter and hospitality for those affected and places for emergency services to base themselves. Of course, there is also the Salvation Army, which as well as being a Christian denomination is one of the world’s largest providers of social aid and humanitarian assistance, frequently on the front lines of the response to earthquakes, hurricanes and tsunamis across the globe.
Even as we speak, faith-based organisations are responding to another national emergency, which might not require flashing blue lights or daily briefings, but is shocking in its scale nevertheless. Across the country, and for several years now, churches, mosques, temples, gurdwaras and synagogues have been hosting and supporting food banks and community pantries. Faith groups may appear to be superfluous stakeholders to government departments responsible for risk assessment and planning, but the children of God in need of food parcels may tell a different story.
Faith groups also have a distinct contribution to make in the face of crises. Beyond meeting material needs alone, they are often central in reinforcing a local sense of identity and the connections that comprise a community’s social fabric. The gift of our common life together can easily be disrupted by disaster or conflict yet cannot be maintained or mended by a statutory service, no matter how well intentioned.
As well as their institutional presence, most faiths have an other-centredness at their core that prepares their members to be willing, as well as able, to help. Week in, week out, most people of faith are working to grow in patience, generosity, temperance, wisdom and, most importantly, compassion.
With this in mind, I suggest that the Select Committee’s report should go further when it speaks about the role of education in building our society’s resilience. We should also consider how our education system can build what psychologists identify as the five pillars of resilience: self-awareness, mindfulness, self-care, positive relationships, and a sense of purpose. These are the building blocks of a resilient citizenry.
If the Civil Contingencies Act is to be updated, as the Select Committee recommends, to reflect the importance of several societal organisations not recognised in the current legislation, might I suggest that faith groups and faith-based organisations are also included?
My Lords, I should declare my interest as chair of the National Preparedness Commission and as a visiting professor of resilience at Cranfield University.
I start by paying tribute to the noble Lord, Lord Arbuthnot, and his colleagues for producing such an excellent report. In the interests of transparency, I should point out that he and the noble Lord, Lord Rees, are both members of the National Preparedness Commission, and that I and another eight commission colleagues, including my noble friend Lady Twycross, were all witnesses in one capacity or another.
This debate is particularly timely. The UK Government Resilience Framework has just been published and I plan to focus on what it says, given the context of the committee’s report. As the framework says,
“We live in an increasingly volatile world”,
where the UK will face far-reaching crises
“greater in frequency and scale … than we have been used to.”
It is therefore right that, when it looks at the local level, local resilience forums are to be strengthened and better resourced. These require genuine partnership between central government and local services, but crucially must also work with local voluntary and community sectors and local businesses.
Within the framework, there are many references to partnership, but the Government need to recognise that this is about much more than simply communicating risks. Organisations need relevant, actionable information. A sophisticated approach is needed, so that these are genuine partnerships of equals that recognise the strengths and assets that the different sectors bring.
The framework is also somewhat weak on the role of communities. Again, partnership here should work both ways. This will require investment in voluntary and community sector infrastructure to enable proper engagement with the local statutory sectors.
The framework places a great emphasis on prevention and preparation. That too makes sense, but there needs to be an acceptance that this will not always be successful. Indeed, it is necessary to plan for failure, and it is irresponsible to encourage false belief in the myth of 100% mitigation. Then there will be risks, threats and crises that have not been foreseen or previously encountered.
The framework promises an annual statement to Parliament on national resilience. Again, this is sensible. However, there is a risk that over time this could become formulaic and not a hugely informative exercise. As a minimum, there should be an annual debate on this statement in both Houses, and consideration needs to be given to charging the Joint Committee on the National Security Strategy—or possibly a new Joint Committee on national resilience—with monitoring and scrutinising progress.
The report of the committee chaired by the noble Lord, Lord Arbuthnot, was a call to arms. We need to make every level of government, every organisation and every community more resilient. If we do that, we will create a sort of herd immunity for a society better able to address future global crises—another pandemic, a massive cyberattack, climate change or whatever else it might be. However, this will require a mindset shift: a change from a “just in time” approach that we have been following for the last 40 years to one where “just in case” is given priority.
This is a generational mission: resilience and preparedness must be built into society’s fabric, designed into government at every level, into our cities and communities, and into all our businesses and organisations. Sir Oliver Letwin, who was Minister for National Resilience, writing for the commission last September, warned that he had seen,
“at first-hand how short-term political pressures and the dynamics of Whitehall can combine to prevent serious efforts to improve our resilience”.
Other noble Lords have made similar points in their remarks today. He called for a national resilience Act, modelled on the Climate Change Act, saying:
“Without a mechanism of this sort to focus the mind of government on national resilience, we can be sure that Britain will remain singularly ill-prepared to meet a range of crises”.
The generational mission has to embrace us all. In all our interests, the new resilience framework must be the first step in delivering that generational shift. This Government, and their successors, must see building our nation’s resilience as central to their mission. The task of Parliament is to hold them to it for all of us, for our children and our grandchildren.
My Lords, I join other noble Lords in congratulating the noble Lord, Lord Arbuthnot, on his skilled and very patient leadership in this important committee of inquiry. I join him in thanking and commending the staff who carefully listened to our deliberations and to the evidence presented, and who distilled, with such skill and mastery, an account of our conclusions. We are immensely lucky in this House to have people of such talent working for us.
In keeping with other members of the committee—especially those of us with some experience in these fields—I say that this special committee was a true eye-opener for all of us. To see in some detail just how ill-prepared our country and our people are for the kind of grave risks prevalent in today’s very dangerous—and increasingly dangerous—world was itself alarming, to say the least. Our study was both significant and timely, and it is possible to say that this is perhaps one of the most consequential reports that this House has produced in many years.
The fact that, in their response, the Government accepted all but two of our highly critical recommendations is evidence enough of the traction that we have created. The appearance in late December of the brand new UK Government resilience framework shows just how timely our report was and the effect that it had.
Of course, the Government’s position—I anticipate what the Minister will say—is that many of the recommendations that we made were already the subject of internal governmental consideration and action. That is easily said but if that was the case and the government machine was aware of the deficiencies in its risk processes, it did not actually say that during the time that the committee was conducting its inquiry.
We took evidence from the then Paymaster-General—then the Minister in charge of the national risk register—and her successor to give a view, and from neither, nor from the civil servant advisers, did we get the impression that the kinds of issues that we were confronted with were being treated with the appropriate degree of urgency. However, the new resilience framework begins to show that, however belatedly, Ministers have woken up to the nation’s vulnerabilities and are seeking to remedy them, and mainly in the ways that we proposed—better late than another grave disaster.
Time is limited in this debate so I will confine myself to making a couple of points that the committee identified. However, I would like the report itself to state its case. It merits reading and rereading widely, because a wider audience than this needs to know what we found and are now concerned with; our conclusions are so relevant and so important. I know that Professor Andrew Morris has already promoted our report to the Scottish Parliament in its post-Covid deliberations. We should make no mistake that our report was hard-hitting and highly critical and, frankly—I say this candidly—that not all of the deficiencies are to do with the last 12 years. Some of us who held government positions related to risk management must share at least some of the blame for historic vulnerabilities.
The main weaknesses in the current system that we identified were an overbearing and unjustified element of secrecy in the whole process and a lack of external challenge to internal government thinking. Both these problems have been addressed in the new resilience framework, and Parliament must be vigilant to see that its sentiments are translated into action.
The experience of Covid-19 has shone a bright light on the way that we look at the grave risks to this country’s safety and security. If we are to avoid the kind of cascading damage that we have seen over the last two years, we need more than fine words in a little-noticed framework document. We need to see its provisions put into effect, and quickly.
My Lords, I express my own thanks to our chair, the noble Lord, Lord Arbuthnot, not only for his excellent introduction today but for his superb chairing of the committee, especially given that meetings had to be conducted remotely almost throughout. I support his thanks to our terrific staff and advisers, and to my fellow committee members for their stimulating company and insights.
I joined the committee encouraged by some of the writing of the noble Lord, Lord Rees, especially in his excellent book On the Future: Prospects for Humanity, in the hope and expectation that we would grapple with how best to anticipate and mitigate some of the extreme and existential risks we face in the UK, particularly those arising from new technologies such as artificial intelligence.
However, the fact is that, in risk terms, we have rarely been thinking beyond a two-year timeframe, let alone a parliamentary term, and we found that our system is completely deficient in assessing and planning for chronic or long-term risks and has a bias against low-likelihood, high-impact risks. In his evidence to us, the noble Lord, Lord Harris of Haringey, chair of the National Preparedness Commission, rightly questioned whether the current political system, with short parliamentary terms and ministerial postings, allows for the proper consideration of risk. Sir Patrick Vallance, who it is clear will be playing an important role in government reforms in this area, was even blunter, saying:
“If you take a two year outlook, you get the wrong answer.”
We discovered that it was not just generational risks where risk assessment and planning were inadequate, such as with climate change or AGI—artificial general intelligence—but that we failed even when it came to the medium term. As we have heard, the great irony is that, prior to the onset of Covid-19, the UK’s approach to risk assessment and management—as the Institute for Government pointed out in its report Managing Extreme Risks—was admired. It is clear, however, that there are both cultural and institutional flaws in planning, assessment, mitigation and prevention. The time is never right for expenditure on prevention and mitigation, as the noble Lord, Lord Rees, says—another plug for his book—in his new introduction.
The risks we face are changing. As we say in the report:
“Technological advances have raised the threat posed by the malicious deployment of technologies which could be used for good or ill, while traditional threats such as those from nuclear or chemical warfare remain.”
We also found that the Government’s risk assessment process through the NSRA looks at only discrete risks and is unable to encompass the complexity of risks facing the UK. It has failed to account for interconnected or cascading risks, which go far beyond the failure of one part of a system.
In his prologue to his book Apocalypse, How?, one of our witnesses, Sir Oliver Letwin, posits a national emergency where the internet goes down, electricity supply fails across the country and no analogue communications backup is available. Given the way that BT’s Digital Voice programme to replace copper telephone lines with fibre seems to be taking place without any assessment of the impact on national resilience, it looks like we are heading for an emergency of exactly that type. Robert Harris, author of The Second Sleep, illustrated this graphically in his evidence:
“Sophisticated societies do collapse. Every civilisation collapses. You cannot think of one that did not face some terrible crisis, partly because they became so sophisticated.”
We further found that the central government risk assessment process has developed a culture of secrecy that impedes thorough scrutiny, expert consultation and information sharing with key partners, as experience with Exercise Cygnus and the DHSC’s more recent report on learning Covid lessons are already showing.
I welcome a great deal of the Government’s response and the new resilience framework, particularly the adoption of the overarching three principles adumbrated by the noble Lord, Lord Arbuthnot, and action relating to local resilience forums and the voluntary sector—and, indeed, relating to the development of skills. But how will the resilience directorate and the new head of resilience be
“providing leadership for this system”?
It seems there will not be any teeth in terms of challenging lead government departments.
Then we have the lack of a statutory duty regarding critical national infrastructure threats, which could be the Achilles heel of our risk planning. How does this square with the commitment to deliver resilience standards in the private sector? What does action to “refresh” the NSRA mean? What methodology will be adopted? Why is there no commitment to looking more than five years out? These proposals all aim to ensure that we have a much better handle on the future. As Professor William MacAskill says in his recent book, What We Owe the Future, sacrifices can actually be win-wins for posterity. I hope the Treasury takes note.
My Lords, I declare my insurance and legal interests as set out in the register. Like other noble Lords, I welcome the Government’s resilience framework and its focus on building our understanding of risks and preparation. We have seen in recent times, particularly during the pandemic, how interconnected and complex our world has become. Having a common and comprehensive framework to build resilience and mobilise the whole of society around resilience is a significant step change in addressing the issues we face.
Many congratulations to my noble friend Lord Arbuthnot and his colleagues on this committee for producing what I feel, having now read it several times, is one of the best reports of its kind that I have ever scrutinised. As the report rightly observes, the Covid-19 pandemic exposed significant shortcomings in our national emergency planning. The considerable resilience that was displayed was all the more remarkable given those shortcomings. I do not know how many of my colleagues watched the film “Contagion”: if only we had paid a bit more attention to some of the episodes in that film, we would have been better prepared. Anyway, it is going to take many years for a definitive report on our response to the pandemic to appear, but it is, in my view, never too soon to start probing the ashes and thinking about what worked and what did not.
I do not think that anyone foresaw the profound disruption to the lives and education of students and pupils, many of whose vital exam years were horribly affected by the pandemic across three academic years—enough to blight a student’s entire time at university. The decades-long policy of reducing the number of beds in the NHS also began to look rather questionable, as those field hospitals were rapidly set up just in case the pandemic ran out of control.
Once again, the exemplary response of our Armed Forces was a model of its kind: brisk, efficient and to the point. As we look forward to future resilience planning, I think—as my noble friend pointed out in his opening remarks—that there is one aspect which is somewhat under-represented at present. A couple of days ago, we debated the Financial Services and Markets Bill, and I called for a closer partnership between government and our formidable financial services industry. My focus then was principally on the potential benefits for the industry and, streaming from that, for the UK economy. I think that the Government could gain too by drawing more upon the very considerable expertise that the private sector has to offer in the field of risk assessment.
I know very well from all my dealings with the insurance industry, particularly when I chaired the British Insurance Brokers’ Association, that the accurate assessment and quantification of risk is bread and butter for that industry. As the report rightly points out, the Government tend to focus disproportionately on higher-likelihood risks at the expense, in particular, of potentially high-impact risks that are believed to have a relatively low likelihood. The insurance industry, not least through its experience with climate change and, before that, long-tail industrial illness and asbestos-related claims, has learned the dangers of such an approach. I hope that colleagues on all sides will consider drawing more on private sector expertise in risk assessment and risk management.
Biosecurity, energy security, and food security—the very foundations of our social, economic and political order—are under severe threat. If we still believe, as I certainly do, that prevention is better than cure, then calmly, coolly and sensibly, I hope we shall follow the wise advice in this report and look to the future, not through rose-tinted spectacles, but in the light of the cold realities of 2023 and beyond in the longer term, using all the expertise at our disposal.
I am very pleased to be able to speak as part of this debate. I declare an interest as London’s Deputy Mayor for Fire and Resilience, in which capacity I chair the London Resilience Forum, and as a member of the National Preparedness Commission, as are, I understand, quite a few noble Lords. I was a witness to the inquiry and gave evidence to the committee.
I thank the noble Lord, Lord Arbuthnot of Edrom, for enabling this debate. This is an important and significant issue that concerns the whole of society, not just this House. The report reminds us of the need for government to be better prepared, saying
“the UK must be better at anticipating, preparing for and responding to a range of challenging scenarios, including those which it has never experienced before.”
Humans learn through experience, and we are naturally inclined to try to prevent the recurrence of something we have already gone through. We are less good at recognising risks or preparing for risks that we have not yet faced ourselves. It is a failure of our collective imagination. It would be wrong to prejudge anything that may come out of the Covid inquiry, but this human trait is arguably why the UK was better prepared for repeats of a flu or swine flu pandemic than for a SARS coronavirus-type pandemic, because we had not felt the full force of one previously.
Were the Government to take on the recommendations in the report and adopt an all-risks approach, it would go a long way to improving the UK’s resilience. In my view, this is particularly key in relation the complex and cascading risks which have been referred to throughout this debate, including on climate change. The extreme heat last summer represents the thin edge of the wedge of what we can see on climate change. I concur with speakers throughout this debate on a number of issues in relation to cascading risks.
I shall make two further points in the remainder of the time I have in the debate. The first is that the Government need to demonstrate that they are taking the risk to the UK’s resilience seriously. I was disappointed that, rather than the long-heralded resilience strategy, we saw the resilience framework in the week before Christmas, at the point at which we were told to expect the strategy to be published. The strategic approach that it promises must not be instead of a strategy. It would be useful to get some clarity on when the forthcoming strategy is likely to be published and how the framework will be funded. The previously expressed vision of making Britain the most resilient country in the world should not be lost, nor should the potential for risks to be seen in the round, or the cascading impact of risks to be carefully considered and planned for be missed.
Clearly it would be ludicrous for home departments with expertise not to be involved in risk planning, but risk planning for hazards and civil contingencies, whether short shocks or long-running chronic incidents, is an area of expertise in its own right. Effective management of extreme risks cannot be fulfilled from a silo approach within departments, and this is where the proposals made by the committee in the report for an office for preparedness and resilience could make a massive and positive difference. This would require commitment and funding but, as the report also points out, and as has been noted in this discussion, prevention is significantly cheaper than cure.
My second point is one that I made to the committee, which is that there is a duty on local resilience forums to warn and inform their partner agencies and the public. There is no such duty on government, and the ludicrous level of secrecy has already been noted. There are many occasions when LRFs are asked to plan for risks but do not get access to the planning assumptions to which the Government are working nor, when they do, to the basis which those assumptions are made. This level of secrecy damages the country’s resilience and cannot be right. Government departments should also have a statutory duty to share information, not least with those tasked to prepare for and respond to risks to our country’s resilience.
There is much to commend in the report. I only regret that the Government have not taken up more of the recommendations as yet, and I look forward to clarification from Ministers on when the resilience strategy will be forthcoming. I hope that they will also ensure that the Government accept the points made by Members of this House during this debate and act on them and the recommendations in the report as a matter of urgency.
My Lords, it was a privilege to be a member of this House’s Select Committee on Risk Assessment and Risk Planning under the expert and excellent chairmanship of the noble Lord, Lord Arbuthnot. We all welcome the Government’s positive and constructive response to our report, accepting most of our recommendations. We also welcome the publication last month of the UK Government Resilience Framework, already referred to in this debate by a number of noble Lords. Much of this embraces the key principle of strengthening our national resilience that we emphasised in our report. I will speak on the essential need for preparedness and resilience in the context of our critical national infrastructure, emphasising the crucial role of new technologies and data in achieving this.
We all rely hugely on electricity and the internet, but we are vulnerable to cascading failures that could proliferate rapidly and cause widespread devastation. Important interdependencies that exist across risks have been identified by the Royal Academy of Engineering in its influential 2021 report, Critical Capabilities: Strengthening UK Resilience. Understanding these interdependencies is crucial and calls for systems thinking. Where infrastructure systems fail, the effects often cascade, knocking out critical services. An example is the flooding of Lancaster during Storm Desmond in 2015, which led to the loss of electricity supply to 61,000 properties, the situation returning to normal only after six days. The loss of electricity resulted in loss of communications and internet signal. The hospital had back-up generators and fuel for 14 days, but A&E became the first port of call for many when access was lost to 111, GPs and pharmacies. Other care facilities such as nursing homes did not have back-up generators. Schools closed and faced a challenge of communication with parents. Retail was disrupted, with only a few ATM machines working. Water and sewerage were disrupted in the more modern buildings, since they also relied on electricity. This case illustrates just one example of the vulnerability of infrastructure and society to loss of electricity and the resulting cascading effects.
In its Global Risks Report 2020, the World Economic Forum places the failure of critical infrastructure among the top 10 risks to the global economy. There are tragic examples of the risks caused by deterioration of infrastructure and lack of maintenance. The I-35W Mississippi River Bridge in Minneapolis, Minnesota, collapsed in 2007 without warning during evening rush hour, killing 13 people and injuring 145, involving over 100 cars. The bridge was only 40 years old. The Morandi Bridge in Genoa, which was only around 50 years old, collapsed during a summer rainstorm in 2018, killing 43 people. Both bridges badly needed design checks and maintenance. Neither bridge was equipped with sensors to give warning of deterioration or change in behaviour. Availability of such data would almost certainly have prevented the collapses.
Closer to home, there was a major infrastructure incident at the Toddbrook Reservoir in 2019, when a period of heavy rainfall triggered a partial collapse of the dam spillway. A complete breach would have presented a grave threat to life for those in the nearby town of Whaley Bridge. Some 1,500 people were temporarily evacuated from their homes. Professor David Balmforth, who led an independent review into the incident, gave evidence to our committee. He concluded that the dam spillway failure was due to both poor design and incomplete maintenance. The incident was clearly a near miss and highlights the need to quantify the progress of infrastructure degradation and prioritise spending accordingly. Our report recommended the creation of an appropriate depreciation register for critical national infrastructure that identifies ageing infrastructure. Will the Minister confirm that the Government support this recommendation?
The emphasis on risk assessment should increasingly be on preparedness and resilience. In the context of critical national infrastructure, innovative technologies now exist for obtaining the necessary data to achieve this. We are in a digital revolution. Fibre-optic sensing and wireless sensor networks, together with imaging from drones and satellites and the use of AI, provide rich sources of data on the engineering performance of key parts of our infrastructure, especially where it is ageing. This is particularly applicable to nuclear power stations, dams, flood defences, water and gas pipelines, railways infrastructure, tunnels and bridges. Combined with good modelling and “what if” experiments, such technologies are a much-needed, cost-effective investment to improve the degree of preparedness and resilience relating to our critical national infrastructure.
My Lords, it is an honour to follow the noble Lord, Lord Mair, who is one of the most eminent engineers and experts in this field I have come across. I very much welcome this report and the work that the noble Lord, Lord Arbuthnot, and his team have done. It is very persuasive, in part because of the amount of evidence gathered from so many different people.
My concern is about the Government’s response. I know that we have the resilience framework, but when one reads the response and finds that all but two of the recommendations are accepted, it is easy to say, “That’s fine; let’s sit back and do something else”. But when you look a bit further, you can see that the response is saying, in my words, “Yeah, we’ll talk about it a bit more and not do a great deal”.
One of the most important responses is to the second recommendation, on an office for preparedness and resilience, et cetera. It is interesting, but then the Government qualify it by saying:
“It will be important for any change to strengthen and complement existing and well tested accountability structures and to avoid unintentionally diminishing the accountability of those most responsible for managing risk.”
To me that means, “We are going to carry on as before and just pay a bit of lip service to some new organisation”. That is really worrying.
I declare an interest as living in probably the lowest property in relation to sea level in this country, on the island of Bryher in Scilly. We look at the waves, the high tide and the storms—this week is not a bad example —and wonder, “How long is it going to last?” There are many other examples around this country—not just sea, water or floods, as the noble Lord, Lord Mair, and others have said.
My concern is that it has taken the committee and the Government about two years to get this far, but what will happen next? As many noble Lords have said, the threat is changing very fast and widening. How will we monitor—independently, as the noble Lord said—the progress, or lack of?
I am a member of the Built Environment Select Committee in your Lordships’ House. We took evidence this week from the Infrastructure and Projects Authority, which all noble Lords probably know. I will not tell your Lordships what the chief executive said because it is probably still confidential, but if one looks at its annual report, which came out I think a few months ago, one will see that it now has a process for monitoring all the different projects that it chooses on their cost and progress and whether they are likely to succeed or fail. It publishes a sort of traffic light system. I always worry that it publishes this thing, but who in government takes any notice? The worst one I have discovered from about 150 projects on the list—noble Lords will be glad to hear that I will not read them all out—is one that we are probably all aware of: the emergency services mobile communication programme. This has been on the traffic light list for nine years, and it is still not working. This is emergency services communication, which of course will be fundamental to many of the crises that may happen in future.
I am sure the Minister will not be able to tell us why this has happened or whether that programme will work next week and so on, but it seems to me that something such as this, with the IPA keeping a monitoring role over all the recommendations from the committee and reporting regularly, would be a useful adjunct to whatever happens next. I will be pleased to hear the Minister’s response.
My Lords, I declare my interest as a vice-president of the Local Government Association and as vice-chair of the All-Party Group on Adult Social Care. I was also health spokesperson for my party from January 2020, when my leader said that there was not much on the health agenda, and I retired from that post at Christmas. It is always a pleasure to follow the noble Lord, Lord Berkeley, and his very practical speech—I have just deleted a large section that I had about the strategic nature of support in the Government’s response because there is no point repeating it. I congratulate the noble Lord, Lord Arbuthnot, and his committee on this extremely important report, on the evidence they heard and the recommendations they have made. As the noble Lord, Lord Hunt of Wirral, said, it is an exceptional report.
For those of us who have been on councils through elective office or had Front-Bench responsibilities, or been in business, having full risk assessments and risk preparedness plans reviewed and updated on a regular basis is an absolute must, even if it is not business as usual to manage the unusual. My thanks also go to the Cygnus Reports organisation website, run by Moosa Qureshi, an NHS doctor who uncovered many other pandemic exercises in the run-up to 2020 that were not published.
The key lesson in both the report and our experiences of the Covid-19 pandemic is that cultural change to partnership working is needed across government, especially but not only with those who have a statutory responsibility to provide responses, whether or not to extreme risks. My noble friend Lord Thurso also highlighted this risk.
From these Benches, it is much regretted that there is not a clear commitment by the Government to the office for preparedness resilience or to a chief risk officer. The Government’s saying
“fold into … reform for our internal risk management structures”
can be read in a number of ways. Will the Government undertake to create both the office and the role of chief risk officer? Too many of the Government’s responses to recommendations use the words “agreeing with this principle”. I am afraid that would allow the Government to dilute these recommendations.
Pandemic planning is a perfect illustration of what went wrong in early 2020. The Government appeared to follow only Exercise Cygnus, which was for influenza. What was not mentioned is that in the preceding seven years there were seven exercises and reports, and that it took Dr Qureshi a series of legal challenges to government to be able to see and publish them. The first, in March 2015, was a report on Ebola preparedness. The second was Exercise Alice on MERS, published in February 2016. Then there was Exercise Northern Light, published in February 2016; a report on Exercise Typhon, a Public Health England command post exercise in 2017; an Exercise Broad Street high-consequence infectious disease report in 2018; Exercise Cerberus, a Public Health England national exercise, also in 2018; and a report on Exercise Pica, the NHS primary care preparedness and response to the influenza pandemic, on 5 September 2018. I read that list in full because it is clear that work was going on behind the scenes. The problem is that it was not used when we came to the pandemic.
The UK became aware at the end of 2019 of the emerging infectious disease that became known as Covid-19 from Wuhan, but it really took until March for actions to start, not least in advice to the public. As the noble Lord, Lord Arbuthnot, outlined, that was a real problem. In February, as the health Front-Bencher for the Lib Dems, I talked to the Local Government Association and to directors of public health, who were already trying to manage cases arriving back in the UK after the February half term, especially those who had been to northern Italy for skiing.
Directors of public health were asking for help and strategic support from Public Health England and NHS England, and they moved ahead fast, with local partners, to set up volunteers to help those who were at risk of isolation and the reorganisation required inside councils to ensure that priority services worked. Yet, entirely separately, the Department of Health and Social Care suddenly announced its own nationally recruited volunteer scheme—there was much confusion all round.
I talk about the need for a change of culture because this is still happening. Ministers ran campaigns this summer to encourage autumn vaccination in preparation for winter illness surges, including influenza and Covid. But it appears that, despite knowing that all the experts were warning that this would be a very tough winter—it is already tough, and we have not even got to what is usually the worst time of year—resilience arrangements were unfortunately not put in place for strep A, for example, until there was a very public shortage of antibiotics. Why were they not ordered in excess this year? Children are ending up in ICU and, sadly, losing their lives much earlier in the winter season than expected. An Ebola response report from 2015 said that a review of surge capacity would be required around paediatrics.
In addition, this week the Secretary of State talked about the high number of influenza and Covid patients in hospital. Many of those patients acquired Covid in hospital, which was probably not unassociated with the extraordinary government decision to relax the mask mandate. During the outbreaks of diphtheria—a notifiable disease under the Public Health Act—and scabies, there were notable delays to the Home Office engaging, first, with the UKHSA and with local directors of public health. I remind the House that directors of public health have a statutory duty under the Public Health Act to start working immediately on any notifiable disease. It took too long for that to happen.
The large number of reports that I outlined earlier showed that the department, Public Health England and now the UKHSA were fully aware of the risks of a rapid spread of highly infectious diseases, including Ebola, Lassa fever and influenza, but they did not follow this. Are all these previous reports being used to assess in the current review inside government—assuming there is one—how to handle the pandemic, which is not yet over, by the way? We also have 9,000 Covid cases in hospital; many of them are the very vulnerable people who were asked to shield during the pandemic. The problem with the Secretary of State for Health and Social Care saying that the pandemic is over and we have all learned to live with it is that arrangements have not been made for this group of people, who remain extremely vulnerable.
The excellent book Pale Rider: The Spanish Flu of 1918 and How it Changed the World, by Laura Spinney, notes in its final chapter that excess deaths continued for some years afterwards—some were due to flu, but they were mainly due to lung disease and heart disease. The most worrying part is that, within three years, most public bodies were back to business as before, and all of the lessons were lost.
Comprehensive risk planning and assessment, with a dedicated team that is not distracted by changes of Ministers, general elections, et cetera, are not just vital for a future pandemic: organisations that plan effectively for high risks can adapt plans for unseen and unpredicted extreme risks. When I was a group leader on Cambridgeshire County Council in the late 1990s, we had severe flooding, chemical leakages and other crises. Our bunker came into use, and the local resilience forum got under way. When foot and mouth disease hit in 2002, the LRF was able to swing swiftly into action for the county on a totally unexpected pandemic, this time with animals.
The noble Lord, Lord Rees, my noble friend Lord Thurso and others were right to say that the Treasury should provide proper resources for that, and not treat it as part of an annual budget which can be cut when times are tight. Covid has shown us over the last three years that, to save a modest amount in extreme risk planning, billions of pounds have been spent and hundreds of thousands of lives lost.
However, I want to end on a positive note, because the Government’s creation of the resilience framework is an encouraging first step. We hope that, above all, it lays the foundation for a new way forward and that the Government will also accept the two outstanding recommendations, not least because that is the only way we will get the cultural change we need.
My Lords, it is a pleasure to follow the noble Baroness, Lady Brinton. Her experience as a shadow Health Minister during the pandemic brought to life the issues we are discussing today, and the debate has been all the richer for her contribution. More generally, this has been an informative debate, and I very much look forward to reading the book by the noble Lord, Lord Rees, which was referred to a number of times.
The report has enabled us to reflect again on our preparedness for extreme risks, including but not exclusively pandemics. The report, as my noble friend Lord Robertson said, has been of considerable consequence already, and that is to be welcomed. It is vital that we, as a country, take the opportunity to reflect and to consider, now that our preparedness has been tested so comprehensively and recently. Obviously, the Select Committee did not consider only pandemic risks, but Covid has shone a much-needed light on the benefits of preparation and on some of our previously unknown deficiencies.
The report emphasised the benefit of being inclusive and as open as possible. Covid showed us that a disaster such as that—a health impact—has consequences far beyond just health services: cascading risks, as we now know to call them. That was brilliantly illustrated by the noble Lord, Lord Mair, in his contribution. Every area of life—our economy, education, policing, transport, culture and the way we relate to one another—has been affected. As the noble Lord, Lord Arbuthnot, said in his introduction, if the first time you think about how to respond to a crisis is when you are in it, you are already far too late. We know, as he said, that risk is dynamic and wide-ranging, and we need to learn and to plan in order to be ready. He said, more than once, “A stitch in time saves nine.” He also said that we should avoid groupthink, be flexible, do better at sharing our understanding of the risks we face, and involve the devolved Administrations, mayors and community leaders, which has benefits that we now understand but perhaps did not appreciate so well before.
Responding to national disasters or hostile acts requires a nimble approach to action and a long-term view from the Government—that has come up a few times. Resilience will not be improved by departments working in silos, and my noble friend Lady Twycross made that point very well in her excellent speech. Whether that is about gas storage facilities or structural issues, such as those identified by my noble friend Lord Browne, it is necessary for Governments in future to prepare for risks that may be unlikely to occur during the lifetime of that Government.
The Government seem to have broadly supported the report and agree with many of the recommendations. Since the report’s publication, the Government have said that they will create a new head of resilience role to oversee departments’ emergency planning work and to improve cross-government working. They will grow the Government’s advisory groups made up of experts, academics and industry experts to inform risk planning and to provide external challenge; they will create a new sub-committee of the National Security Council to specifically consider issues relating to resilience; they will create a UK resilience academy, built out from the Emergency Planning College, to make world-class, professional training available to all who need it; and they will strengthen local resilience forums in England by working across three key pillars of reform in the UK’s levelling-up