House of Lords Podcast: a healthier nation, and government by 'diktat'

What is needed for England to be a healthier nation?

We hear from Karren Brady and Phil Willis – Baroness Brady and Lord Willis of Knaresborough – this month on the report just issued by their committee.

The Lords Sport and Recreation Committee has called for a new national plan for sport, health and wellbeing. Matt and Amy find out why this is needed and what more needs to be done.

‘We have some of the greatest sporting leagues in the world…

We're producing world-class people at the top end, but in reality, that is a very small pool of people. And whilst they are excelling, the vast majority who are going to our schools, who are going into our youth clubs and our sports clubs, and indeed those who are doing nothing at all, are flatlining. And the result of which is that we are seeing a more obese nation, a less active nation, an unhealthy nation. And the cost on the NHS of all that is absolutely enormous…

We're not asking for billions of pounds, we're asking basically for you to reorganize the money that is spent and to focus it where it is best needed at grassroots.’
Lord Willis

Baroness Brady also shares her thoughts on her experience on the Sport and Recreation Committee

‘It was also great that everybody on the committee came from a very different perspective and has very different expertise, which is what the Lords is all about. We're invited to come here by using our lifelong experience in our chosen field to look at legislation and hopefully make it better and recommend amendments to the government to change to improve them. So it was great to work with so many talented and incredibly knowledgeable people about their areas and come together with conclusions that cross-party we agreed.’
Baroness Brady

‘Government by diktat’

This month we also speak to Lord Blencathra and Lord Hodgson of Astley Abbots about the government’s use of secondary legislation. The two committees they chair have recently warned about abuses of power by the executive and the need for a rebalancing of power back towards Parliament.

Over the course of their discussion, they explain in detail the different concerns the committees have on the changing use of secondary legislation and why we should all be concerned at how it is being used.

‘We've even seen in one bill where the Henry VIII power would've permitted the minister to scrap any Act of Parliament, right back to 1066…

Government departments say, "Oh, well, yes, we've taken these extreme powers, but we don't intend to use them." And my committee says, "Look, it's not what the minister says he's going to do that matters. It's what the law permits any future government to do."

So if the law allows a minister to scrap a section of an existing Act of Parliament, rewrite an existing Act of Parliament going back hundreds of years, or just completely abolish it, then that is not right.’
Lord Blencathra

Go and read Hilary Mantel

They also explain what secondary legislation is, other terms you may have heard like skeleton bills and Henry VIII powers and unlikely places to learn about them.

‘Well, I'd give you one sentence. Go and read Hilary Mantel on the work of Thomas Cromwell and his relationship with the king.’
 Lord Hodgson

Guidance or law?

We also hear about recent examples of confusion that have arisen from secondary legislation and the use of guidance.

‘Yes, SLSC are really concerned about guidance, which is advice, and regulation which is law. You have to obey the law, but do you have to obey guidance?...

‘Right back in the beginning [of the pandemic], there was a restriction on only one form of exercise per day to every person in the country, quite an important issue, but that was in guidance. The regulation had no restriction at all. So technically you could exercise as many times as you'd like, but the guidance said only once a day.

‘Now, how is the man in the street gain understand the difference between those two?’
Lord Hodgson

• Read more from the Lords Sport and Recreation Committee
• Read more from the Secondary Legislation Scrutiny Committee and Delegated Powers and Regulatory Reform Committees.

Transcript

Amy:
Welcome to the House of Lords Podcast

Matt:
In this episode, we discuss sport and wellbeing, plus the dangers of the government’s use of secondary legislation.

 

Amy:

Welcome to the last podcast of 2021 – we made it!

It’s been pretty busy here in Parliament over the last month. The Police, Crime, Sentencing and Courts Bill is currently under consideration in the Lords, with changes being debated and voted on by members.

Matt:
Yes, we’re at report stage and, so far, into the New Year that’s scheduled for 6 days of report stage. It spent 11 days in committee. That’s pretty long for committee stage in the House of Lords, but there have been longer ones.

There’s also been new Coronavirus restrictions to consider, lots of urgent questions on topics including the Euro 2020 final, Nazanin Zaghari-Ratcliffe and the recent power cuts as a result of Storm Arwen.

Amy:

There have also been a flurry of select committee reports. In this month’s episode we’re going to discuss three of them. First up we speak to Karren Brady and Phil Willis – Baroness Brady and Lord Willis of Knaresborough – about their report on creating a national plan for sport, health and wellbeing.

Matt:

Then later on I will be speaking to Lord Hodgson of Astley Abbots and Lord Blencathra about their two committee reports warning about ‘government by diktat’ and the use of secondary legislation.

Amy:

First, though, let’s hear from Baroness Brady and Lord Willis…

Lord Willis:

Hello. This is Phil, Lord Willis of Knaresborough, but prefers to be called Phil.

Baroness Brady:

Hello, I'm Karren Brady.

Matt:

Well, welcome this afternoon. Thank you for joining us. Can I start, Lord Willis, as chair of the Lords Sport and Recreation Committee, can you tell us why we need a plan for sport, health, and wellbeing right now?

Lord Willis:

Well, it's a good question, and a very simple answer, that the UK, and England in particular, is one of the most unhealthy nations in Europe. And the fact that we have spent billions of pounds over the past couple of decades, including the Olympics to try to ensure that people became fitter, became more active, we flatlined. The pandemic has also demonstrated to us that roughly two out of three people do less than a half hour of activity every week. And in terms of developing your physical health and your mental health, quite frankly, that's just unacceptable.

Matt:

What are the sort of risks if we don't act right now?

Lord Willis:

The risks are quite simple, really. We know that in terms of a nation, we have some of the greatest sporting leagues in the world. If you take the Premier League, without doubt, the premier sporting league in the world. We do in terms of Formula 1, through to women's soccer, through to netball, through to disability sports in Paralympics and Olympics.

Lord Willis:

We're producing world-class people at the top end, but in reality, that is a very small pool of people. And whilst they are excelling, the vast majority who are going to our schools as obviously as young children, who are going into our youth clubs and our sports clubs, and indeed those who are doing nothing at all are flatlining. And the result of which is that we are seeing a more obese nation, a less active nation, an unhealthy nation. And the cost on the NHS of all that is absolutely enormous. And we're trying to reverse that and just simply say, we're not asking for billions of pounds, we're asking basically for you to reorganize the money that is spent and to focus it where it is best needed at grassroots.

Matt:

You've obviously both spoken to lots of different organisations and individuals during the inquiry. Was there anything that was particularly surprising to you in the evidence that you heard?

Baroness Brady:

Well, I think one of the things that I thought was quite interesting was we worked with FYI, which is a Sky television program aimed specifically for young people, and they carried out their own survey. I think it was about a thousand young people they spoke to.

Lord Willis:

They did. Yeah.

Baroness Brady:

And 75% said they relied on schools for their sport and felt that they didn't do enough sport and would like to do more but didn't have a way of doing it. We found that quite a sort of mixture of both deeply depressing and helped us focus more on what schools should be doing and making sport a core subject alongside maths and English, because so many young people rely on their schools to be physically healthy and active and setting really good habits, and being in the habit of enjoying sport is one of those lifelong lessons you need to learn from a very early age.

Lord Willis:

I mean, I totally agree with that. If we don't start with young people and we don't start with our schools, then quite frankly, we don't have a future in this area. But I think what surprised me most was the lack of coordination at both local and national level in terms of physical activity, that whilst we've got some superb sports clubs, we've got local authorities who do the very best job they can with incredibly limited resources.

Lord Willis:

What we have is a dysfunctional system at national level, where government departments see, "Well, it's not our job." And that quite frankly applies to both the Departments of Health and Education who are our largest departments, and it applies particularly too, if you look at transport. Quite often, facilities are difficult to get to unless mum and dad can take you there or you've got transport or what have you. If you're living in a poor community, particularly say in parts of the Midlands or the north or Yorkshire, where I taught for many, many years in Leeds, actually, they don't have cars, they don't have the facilities to get there, because there are no facilities in their area. So they have to travel to actually get those activities, and to do that requires additional resource, or a lot of determination. And quite frankly, the option is better to sit at home and play games on a console.

Matt:

So, what kind of things are you calling on the government to do in that area to coordinate?

Lord Willis:

Well, the national plan really basically says we actually need an organisation, and we've called it the Office for Health Promotion. We want to make sure that what we actually see is a statutory committee lodged in the Department of Health with a minister for health, sport, and wellbeing to drive this to government level, linked directly into the Prime Minister, reporting directly as well to Parliament, to ensure that the different government departments are brought together to have a coordinated plan. At the moment, each of them might have parts of a plan, but they don't work together. And what we want to see is a minister who will actually drive this as their life's work in terms of making us the most active nation on the planet.

Matt:

And, Karren, obviously, lifetime of experience in football. How do you think the football community from grassroots up will respond to the report?

Baroness Brady:

Well, we heard a lot of good evidence of the great work that football clubs do within their community. They are shining examples of when the business of football, the community and volunteers can get together and do some incredible work, and they don't get nearly enough recognition for the work they do through their foundations as they should. And actually, we have some great evidence from clubs of how they were engaging with young people, getting them active and reaching out to young people in a way that local councils and schools sometimes can't. So that was very refreshing. And I think most people will embrace that. I think football club foundations want to do more. They're very willing. That's their purpose, which is to put back into the community. And I think everyone will embrace it. We all know that being physically active changes your life, makes you healthier. We just need to give people the incentive and the opportunity to do it.

Matt:

And I understand this is your first time on a Lords committee. How did you find it? Was it what you expected? Is it anything like a football board meeting perhaps?

Baroness Brady:

Well, it's nothing like a football board meeting, but there's nothing like a football board meeting.

[Laughter]

I'm not saying this just because Lord Willis is here, but when I was asked if I'd like to sit on the committee, I thought it would be something I'd really enjoy doing. And I really have. It's been incredible.

Baroness Brady:

We met every Wednesday for a year. We heard lots of evidence. We got out and about, meeting people, seeing people where we could, most of it on Zoom. We heard some incredible evidence from people doing the most remarkable work in their local community, frustrated by the lack of facilities, the lack of funding. We had a rollerblading community that came to speak to us, and they were oversubscribed by 500 people, but they don't have the volunteers, the equipment, the insurance, the ability to increase what they have to do. And it was one lady, pretty much doing it on her own, where she was trying to run her own family, run her career, and run this great volunteering service. I think we all have massive respect for volunteers, but I think our level of gratitude to everybody who works and volunteers within the industry was really enhanced by the sort of vocation that they feel in working with people to get them fitter and healthier.

Baroness Brady:

It was also great that everybody on the committee came from a very different perspective and has very different expertise, which is what the Lords is all about. We're invited to come here by using our lifelong experience in our chosen field to look at legislation and hopefully make it better and recommend amendments to the government to change to improve them. So, it was great to work with so many talented and incredibly knowledgeable people about their areas and come together with conclusions that cross-party we agreed.

Baroness Brady:

And I thought it would be more political than it was, but it absolutely hasn't been, it's been very focused on there is a problem in this country, as Lord Willis so eloquently put, with people not being active enough. And despite very many people over very many decades spending many billions of pounds, it is not getting any better. And we very much hope that this coordination that we feel will make that difference, is embraced by the government and put into place. And then I think we will see the improvements that we need.

Amy:

And you touched earlier on the comparison between England and the rest of Europe. So, is this an issue particularly facing England, or are you seeing this across the UK and internationally as well?

Lord Willis:

Well, that's a good question because I think what we're trying to do is to take some international comparisons, particularly with countries where they are deemed to be doing well. And so, we looked at Scandinavia, and in fact, we were able to meet people via Zoom from Scandinavia. And we also met the deputy prime minister from New Zealand, where New Zealand have exactly what we are calling for, which is a national plan, which actually reports to the Treasury, which is interesting because they've got the cash.

Lord Willis:

And I think in both cases, despite the fact that they have got this as a real priority, in Scandinavia school children were linked, for instance, into amateur sports clubs from the time they began, and that parents were expected in many places to actually belong to those clubs as well to actually support children. We have generations of parents who want to leave their children at the gates of sports clubs so they can go and do something else. And I hope they're listening to this when I say that.

Lord Willis:

And so actually taking evidence from abroad demonstrates that this is a worldwide problem, that people are not becoming more active just because they feel that that's what they want to do. There are so many competing demands on people's time, and particularly parents' time if I might say. But the amount of time that young people are now spending on computers that are actually spending watching and actually playing games, and parents often feel they're safer in the house doing that than they are outside, where I suppose when Karren and I were growing, we did spend a lot... Well, I grew up a long time before Karren.

Baroness Brady:

How old do I look?

[Laughs]

Lord Willis:

But what we did was spend an awful lot of time outside, sort of in physical activity. And this report is not just about playing competitive sport. The main thrust of this report is that all of us need to be more active. So, whether it is in Pilates or whether it is in dance or other forms, what we actually want to see is opportunities to do that. And taking examples from abroad about organisation, we have done in this report. What we now need to do is to translate that into Britain.

Lord Willis:

If I just give you one figure, one in 10, children are leaving our primary schools, clinically obese. Now, being active won't make them less clinically obese, but indeed it will help them in terms of getting a refocus in terms of what they eat, as well as getting the activity that they need to keep healthy.

Amy:

And you mentioned the issues with transport. So, I was just wondering, did you particularly see a difference in terms of cities and people living in countryside, for example? Were there sort of vast differences there or were the issues of across the board?

Lord Willis:

Well, I think it's fair to say that we didn't actually separate those, and I'm not keen on separating those because the Earl of Devon who was, again, a first time member of a select committee and came on to the committee with his vast knowledge of large country estates, particularly down in Devon, as his name suggests, and he was quite a revelation to me in terms of saying, "How do we actually tap into all that land? That huge land that Britain has, that England has, how do we get landowners to actually open up their land?" And he was quite simple, but he was straightforward. He said, "Unless you put infrastructure in, landowners are not going to do that. They're not going to give you access to land and simply say, 'Oh, well, please, landlord, will you build toilets? Will you build pathways? Will you do safe corridors?'"

Lord Willis:

And so I think we've got to look at both urban and rural as part of the same plan, but to ensure that if you are living in rural locations, then transport becomes a fundamental necessity in terms of getting people to facilities.

Amy:

And have your findings inspired any changes in your own approaches to being active?

Baroness Brady:

I mean, look, I've never been in a gym. I couldn't think of anything worse.

[Laughter]

I have to be absolutely honest. But my physical activity is actually generally walking. I walk and cycle everywhere. Don't own a car. I have two legs and I use them. It's a couple of miles from here. For example, at the House of Lords to my home, I walk here. I walk here, I walk back, or I cycle here, I cycle back. So, I'm not one of those people that says, "Oh, gym time," I've got a husband who's in the gym morning, noon, and night, ex-professional footballer, and a son who's also in the gym and a daughter's also in the gym, but that's not really for me. But this is part and parcel of everything we've been looking at. It's about being physically active in the way that you choose. Sport doesn't have to be competitive or professional. It has to be something you enjoy that you're going to do regularly that's going to make a difference to your life.

Amy:

And Phil?

Lord Willis:

Well, I was 80 years old or 80 years young last week.

Amy:

Never.

[Laughter]

Lord Willis:

I know. It's hard to believe. And I keep fit because I've got a dog. I've got a Border Collie.

Baroness Brady:

Me too.

Lord Willis:

And unless you actually walk your 10,000 steps every day with the dog, she's at me, she's causing me problems, she's disturbing me in the night. So, walking for me, as it is with Karren, is a fundamental part. But you have to have places to walk. You've got to have access for those places to walk. And I'm lucky living up in Yorkshire in that I live in a village and can do that. If I live in Chapeltown, in Leeds, where I used to work, it's incredibly difficult, unless you get access, for instance, to the school fields or the university's fields, which are vast. And at the moment you can't, because there is no way of getting access to those other than through a very difficult, complicated channel.

Amy:

I think we all definitely felt that in lockdown as well. That was when it became so obvious whether you have nice places to walk, accessible places to walk near you. We all felt that. One thing that is sometimes said about committees is that yes, they do very important work, they produce worthy reports, but the government can choose to ignore them if they wanted to. They have to respond to the committee, but it may not be put into action. Is that something that you worried about during this inquiry? Or is there anything that you... You've obviously been in committees a number of times. Is there anything that you do to try and avoid that?

Lord Willis:

Well, I think you're partially right. And I think anyone who joins a select committee and believes that the end report will just hit the Prime Minister's desk and they’ll say, "I'll implement that in the next manifesto," I think really should visit someone.

Lord Willis:

In reality, you often find that parts of your report will get adopted straight away. Other parts of them will be adopted perhaps in five years’ time. You've got to recognize that changing government policy is, in my view, as a long-time party politician, is a slow burn and you are not going to get those rapid changes. But I've worked mostly in science all my time, chairing the science committees, both in the House of Commons and the House of Lords. And I can tell you that quite fundamental things have changed. They're not named the same way as they are in your report, but suddenly they appear in the manifesto, they suddenly appear in a policy document. And I think that happens in business in exactly the same way as it does in the House.

Lord Willis:

This report, we have a real opportunity to do something because there is a Health and Care Bill, which is coming into the House tomorrow. And we know that we have a group of colleagues on the committee who are skilled parliamentarians, who have the opportunities to bring forward legislation, amendments to that legislation, which are not party political, which are not hugely costly in any shape or form, but which will allow the sorts of thrust and dynamism, which we are talking about.

Lord Willis:

Moving the whole of this area into the Department of Health is a radical move, which has got far reaching consequences if you think about it. If we think that the nation's health starts with being active, you've sudden changed the culture fundamentally. That will not happen overnight. It will happen if you put in structures, which enable it to happen over time and getting an Office for Health Improvement, having a minister responsible directly to the Secretary of State for Health and Social Care, who's responsible directly to the prime minister, you have an opportunity to actually change things. And what government faced with a situation where it can literally save billions of pounds by making the nation healthier for a relatively small outplay wouldn't want to do it?

Amy:

Time will tell. Karren Brady, Phil Willis, thank you very much for joining us on the podcast.

 

Matt:

And next up, here’s my discussion with Lord Blencathra and Lord Hodgson…

Lord Blencathra:

Hello. My name is David. Lord Blencathra. And I'm the chair of the Delegated Powers and Regulatory Reform Committee.

Lord Hodgson:

Hello, Robin Hodgson, Lord Hodgson of Astley Abbotts. I chair the Secondary Legislation Scrutiny Committee.

Matt:

Okay, thank you both for joining us today on the podcast. Can we start at the very beginning, I guess, what is secondary legislation, is that the same as delegated legislation, statutory instruments, all these terms get banded about - Lord Blencathra?

Lord Blencathra:

Well, secondary legislation is delegated legislation. And of course, it is absolutely essential for the running of any government. The primary Act is an Act of Parliament and an Act of Parliament goes through first reading, second reading committee stage, report stage, third reading in both Houses of Parliament.

We are doing the Police Bill at this precise moment in the House of Lords. I think it’s had 20 days already in committee. It'll probably get seven or eight days in report. It's at a similar treatment in the House of Commons, detailed scrutiny over many months.

Now, the bill and like many other bills allows the minister to make secondary legislation. That's a delegated power. And that secondary legislation may be put under the affirmative procedure, in which case the regulation has to be considered by both houses for a maximum of 90 minutes before becoming law. Or it may be under the negative procedure, where it automatically becomes law, the instant the minister signs it. And then it's only debated if people pray against it or object to it.

So secondary legislation is essential. Our report criticises the extent of it and how inappropriate it may be.

Lord Hodgson:

I personally would add just one thing to this. We should not become obsessed about secondary legislation always being a bad thing. There are places where it has to be used. For example, some of the negative instruments that Lord Blencathra has referred to are, of course, things like raising the levels of fines. You need to have the ability to reflect inflation and those sorts of things. That's perfectly acceptable. It's got to happen. You can't have a new bill every time you want to change the level of a fine because of inflation.

Lord Blencathra:

Just if I may add to that, Lord Hodgson is absolutely right. But what we would say of course, is the concept of the fine, the principle of the fine and the parameters of it should be set in the initial Act of Parliament. That is perfectly legitimate by secondary legislation to change the absolute level within those parameters. And many regulations are technical, boring stuff, which are of no great threat to the freedom of the individual. And of course, they should go through on the negative procedure.

We are worried about, as we will discuss later too, disguised legislation, skeleton bills in regulations, which affect the security and privacy and wealth of the individual and Parliament may never ever see.

Matt:

Obviously, you are here in your capacities as Chairs of the two committees you mentioned, one being responsible for looking at the powers to create secondary legislation. That's in primary legislation, bills going through Parliament and the other considers regulations themselves. Could you give us an idea of what that involves, how your committee works? Perhaps we could start with Lord Blencathra about the powers and then turn to Lord Hodgson.

Lord Blencathra:

To simplify it, I'll call it the Delegated Powers Committee rather than Delegated Powers and Regulatory Reform. Our official remit is to look at every single bill coming before the House of Lords. We're different from other select committees. We don't have a choice on what we're going to look at. Our remit is we have to look at every one and we have to study what the delegated powers are. What powers are given to the minister to make secondary legislation.

And then our remit is to report if we consider them inappropriate powers. Now, inappropriate can cover a wide range of things. For example, we will no doubt discuss Henry VIII powers. There is no harm in some Henry VIII powers that are essential, but we will criticize Henry VIII powers, which are excessive and unnecessary, and it may not be time limited.

We worry about disguised legislation. We are concerned that so many powers may be in the negative procedure where the law is bounced through without prior debate. So, we look at all aspects of what we may consider or what the house is traditionally considered inappropriate delegations of power.

And in order to do that initially, every single government department must supply a detailed memorandum of delegation, the Delegated Powers memorandum. In fact, they've got to supply that to the House of Commons as well. The House of Commons doesn't have a committee like we have in the Lords to consider it. So, we look at the justification the department has for why the minister has been given this power. And we are often highly critical of some of the justification for it. And sometimes they say, "Oh, we've always done it in the past like this, so we're continuing in the present," and we say, "Every bill is different. Every bill must be considered on its merit. And just because you've got away in the past with an inappropriate delegation of power doesn't mean you should do it on this bill."

That's our general remit. We report to the house. We send our report out. The department must reply and explain why they think we are wrong. So often of course, the department, as we've seen in the Police Bill on Wednesday night, I can't remember the exact date. The Home Office ministers moved a whole series of government amendments, every single one of which was implementing our report, criticizing some of the powers on the Police and Sentencing Bill. That's good where the department does it.

The final point I'd make is yes, we're critical of some of these Delegated Powers memoranda, but we've seen some outstanding ones as well. DEFRA produced a brilliant memorandum on the Environment Bill, and more than, I think 60% of their delegated powers on the bill were for the affirmative procedure. So we praise them to the skies. And if one department can do it on a major bill, like the Environment Bill, every other department can do it as well, in our opinion.

Lord Hodgson:

Well, we're at the other end of the legislative sausage machine, where we're dealing with the output. We do not get involved in the political aspect of it. So we look at the efficacy of the regulation, not at the politics. So, there are essentially, I think, four grounds on which we are particularly interested on discovering whether the government thought it through.

They are, whether the explanatory memorandum and the impact assessment assesses properly the options that the government had before it and why it chose the one it did choose and what the cost of that will be. And that is a running central core part of our considering on a particular regulation.

The second question or the issue is about consultation, was the instrument consulted upon? So, have we taken in views from the wider world of those who might be interested in the outcome of this particular regulation? So, if you're doing things on transport, have you talked to the Road Haulage Association, the interested trade bodies. And certainly do we think that it actually will achieve the objectives, which the government is set for it. And then when we do that, we write a report every week, one coming out in an hour for this week, we meet on a Tuesday and we draw the attention to the House to regulations which we think have failed on those sorts of grounds.

Lord Blencathra:

Lord Hodgson, in his introduction has made a very important point. They do not comment on the merits of the regulations or any political impact. My committee is exactly the same. Therefore, in the Police Bill, I think members of my committee have very strong views about the demonstration powers as I have, but we don't look at that. We only look to see whether delegated powers are appropriate or not.

We look at Private Members' Bills, the Assisted Dying Bill. We did not consider whether it's a good or a bad thing or the merits of it. We look to see whether the power being given to the ministers was appropriate or not. And to take a hypothetical example, suppose the government produced a bill called ‘The Slaughter of the First-Born Bill’. Well, my committee would not comment on whether that was a morally right or wrong thing, but we would comment on whether the new King Herod had got the right amount of powers or whether the powers the minister would have, were excessive or not.

Matt:

Lord Blencathra, you mentioned there earlier about the Commons not having an equivalent committee, it sounds like the Lords have set up a structure to go from beginning to end process. Why do you think the Commons haven't set up something similar?

Lord Blencathra:

The Lords historically, we have this role of improving legislation. In about the 1970s, I think it was, the Lords became more and more concerned about inappropriate delegations of power. And the House of Lords decided, "This is so important, we will set up a committee." And in 1992, the Delegated Powers Committee was constructed in order to look at those aspects of it.

Now, this did not concern the Commons so much. And without being unfair on the Commons, when I was a member of parliament in the Commons, and maybe Lord Hodgson would say the same, we were more concerned with the political thrust of the bill. Did this bill do our manifesto job? Does this bill satisfy the political lobbies and so on? Does it deliver our policies? And I certainly, as a minister in the Commons, did not look at the detail of delegated power to be blunt. I didn't particularly care about it. It wasn't the first thing at the forefront of my mind.

Admittedly, when we sent bills from the Commons to the Lords, the Lords would amend them. And back in the Commons, we'd say, "By God? Why did they do that? They changed my bill because they were worried about Henry VIII powers."

So, the Commons, traditionally have not been as worried about the detail as the Lords is, and that's partly out of historical remit, I think. Now, I think it would be wonderful if the Commons wish to set up a committee identical to my own and identical to Lord Hodgson’s, but that's entirely a decision for them.

Matt:

Lord Hodgson, any thoughts on that as a former MP as Lord Blencathra mentions?

Lord Hodgson:

Well, I think that an MP's life has always been crowded and with modern social media, it is more crowded than ever. So, you are dealing with a constant stream of emails from your constituents. And most of the stuff that Lord Blencathra's committee and my committee does, is not going to have them dancing on the tables in The Dog and Duck. We are down into the detail and while the outcome may have been impactful, it is very hard for MPs to carve time out from their inevitably hugely busy schedules to walk through the stuff that Lord Blencathra committee and my committee does.

And I think, if going forward, when we should get this a bit later in our discussion, I think there is a role for much closer collaboration between the two Houses, for it to be seen as a collaborative effort to hold the government to account. We need to think much more the constructively of how we work together, rather than both Houses seeing any move by the other, as an attack on their sovereignty and their power.

Together, we are much more powerful than we are individually.

Lord Blencathra:

I'm sorry, I keep coming back. But after Lord Hodgson speaks, I think that's a jolly good idea. Why hadn't I thought of that? If we were starting from scratch and we had the ultimate power, we should have a joint committee looking at secondary legislation and a joint committee looking at delegated powers.

I can tell you, occasionally, when the House of Commons sets up a select committee to do pre-legislative scrutiny, look at a draft bill, they sometimes ask my committee for our report. We send them a report and the general view is, "Good grief, we had no idea such a committee existed. This is astonishingly good stuff."

And the Commons, I won't mention to which committee have just issued a report on a draft bill, and about half the report is based on a report we sent them, the bill is a draft bill. We won't get it in the Lords until goodness knows when, but they wanted our input on what the delegated powers were. And they were amazed at the quality of the stuff my committee produced, it's nothing to do with me, but my committee produced astonishingly good stuff. And when the Commons sees how good it is, it seems to me that we could be doing more joint working. But that's way beyond our pay grade to try and implement that.

Lord Hodgson:

I'd like to just add, the same applies. You talk to ministers about the SLSC and some of them will say, "I really value what the SLSC has said, because it tells us where the weak points are and what we need to be thinking about and where we may need to make some changes, as opposed to just trying to bulldoze the thing through.”

              I mean, it must be in our interests across the whole piece of government, executive, and legislature to get effective law that works well, that citizens understand, and that meets the needs of our democratic society.

Lord Blencathra:

Yes. If you look at the Police Bill, we're dealing with the report stage of the Police Bill and all the recommendations we made to upgrade things from negative to affirmative procedure and to change guidance, which one must obey, from not being discussed in Parliament to possibly being discussed in Parliament. The bill went sailing through the Commons. This was never mentioned in the Commons. Once it came here, we issued a blistering report. The Lords ministers had to go back and meet the Commons ministers and the department and say, "Look, the House of Lords committee has slammed this bill."

Now, if I was to fly on the wall, I would guess that the ministers in the Commons said, "Well, what was wrong with them?" And when the Lords ministers point out the flaws there's, "Oh my God, I didn't realise delegated powers could be so bad or so inappropriate." And therefore - jointly the ministers in the Commons, and the Home Secretary would have to sign off on this - they agreed, we better make these changes, which the Lords committees demanded.

Matt:

Can I turn this onto the committee reports that we're here to talk about today? My understanding from the reports are the main concerns are skeleton bills, Henry VIII powers and disguised legislation. Have I missed anything there?

Lord Hodgson:

Yes, SLSC are really concerned about guidance, which is advice and regulation which is law. You have to obey the law, but do you have to obey guidance? And this phrase of have regard to guidance, what does that really mean? Does that mean, well, I thought about it and I said, "Well, I don't think it applies to me, so I'm not going to do it." Or does it mean the courts are going to say, "Hang on, have regard to means you better have a jolly good reason for not doing it."

So, the guidance and the regulation imbalance, or one morphing into the other is very important. Now, just let me give you a couple of examples of how these things work. Right back in the beginning, there was a restriction on only one form of exercise per day to every person in the country, quite an important issue, but that was in guidance. The regulation had no restriction at all. So technically you could exercise as many times as you'd like, but the guidance said only once a day.

Now, how is the man in the street gain understand the difference between those two? And this goes through a whole series of issues some of which are ridiculous. And I'll give you a ridiculous one. The Wildlife and Countryside Act - the regulation says it is an offence to allow pheasants and red legged partridges to escape into protected areas, right? Now we said, how on earth do you stop game birds in the wild, what do you do? The guidance said must not encourage birds. So in law, it was an offence. In the guidance, it said you mustn't encourage it.

And that's a much more understandable thing. You mustn't encourage - that you could do - but actually try to stop pheasants and partridges flying around? Well, I invite the DEFRA staff to go and enforce it.

Lord Blencathra:

It would be the equivalent of trying to herd a bunch of cats with a sheep dog and it's nonsensical. So we had a good example, last Friday in a Private Member's Bill on the Amending Education Act to allow schools to teach an assembly on the importance of the environment. A good bill, but it was guidance, which one must have regard to. And my Delegated Powers Committee says, if the government issues a guidance and it's just advisory - obey it if you wish - good stuff. We don't think Parliament should be involved.

But when it is guidance, which one must have regard to, and as Lord Hodgson says, the courts will then look at that as if it's a statutory requirement as if it is almost an Act of Parliament. Therefore, we say that is practically mandatory and if it's practically mandatory it should come before Parliament, even for the negative procedure.

And that leads on to what we call disguised legislation, where something like guidance, which must be followed really like legislation, should be laid before Parliament, but then there are other clever things where departments have said, we better not call it guidance and they call some things protocols.

During COVID, the bill allowing people, restaurants, to put tables on the pavement. And they had to keep a metre apart to let people through and so on. They decided rather than issue guidance, to issue protocols. And we slammed that saying, "Hang on protocols is a nonsensical term. You're trying to avoid calling it guidance, which must be obeyed." And we've seen things called declarations and advice. We even had one bill where it said, the law could be changed by public notice, putting an advert in... Well, it wasn't necessarily in the Financial Times, but putting an advert, a notice online that the law had changed.            

Now, that's a new digital equivalent of Henry VIII powers going back 582 years. That's an example of disguised legislation masquerading as guidance.

Lord Hodgson:

Before we leave and go to the skeleton, which I think is really important, it's also very important that the government gets clarity of the key expressions. People would have been familiar with the issues of the compulsory vaccination, NHS staff, and what that means. But they were far from clear, as to who actually was covered by this.

So the words face-to-face were not defined. So if I am in a hospital in administration behind a perspex booth, am I face-to-face? Or am I only when I'm dealing in a clinical case, in a clinical way? They also use the phrase ‘otherwise engaged’. Now, what does otherwise engage mean? You're installing IT, that you are in the hospital and you're doing things, do you need to be vaccinated?

So there's a lack of clarity about what they actually meant. So the combination of poorly defined regulations, being backed up by guidance that may or may not be enforceable, not maybe required to be obeyed to, but be obeyed at law, is very difficult for people to implement in a way that makes sense and is fair to the general public.

Matt:

So, we've covered their disguised legislation, guidance, tertiary legislation. You both mentioned Henry VIII powers, I think, and skeleton bills. Can you explain to us what's a skeleton bill? Lord Hodgson, perhaps?

Lord Hodgson:

Yes. Well, a skeleton bill is where... It says what it says on the tin, namely the detail is left for regulations, which has all the weaknesses we've just been discussing. Now, it may be in this fast-moving age that you do need some flexibility like this. But it can be, and it can too easy be for the ministers, not to do the intellectual heavy lifting and thinking their policies through to the end.

So the officials say, "Well, minister, we can leave that to secondary legislation." We don't have to reach that hard choice now. The hard choice will be maybe controversial in the Commons or the Lords. So why don't we leave it there? And we can come back to it with secondary legislation, which actually we all know will have a much lower level of scrutiny and you can, so to speak, ‘get away with it’, quote-unquote, or make it up on the hoof depending on how the circumstances are at the time. And also, it means that if it goes wrong, you can do a reversing snake wriggle with a minimum amount of embarrassment.

Primary legislation, to change that, are you in the crosshairs. But regulation, well, we can get out quite well. Put another one through and it'll go through and it'll probably not be noticed. And Lord Blencathra will talk about this, because he's had huge experience in this area and it's his committee that's really leading on this.

It's a combination of not thinking clearly enough about what you're trying to do and filling in the detail and deciding it's much easier to avoid the risk of having to decide, so you can change your mind later.

Lord Blencathra:

Yes. Skeleton legislation is an abuse of power. There may be circumstances where a government wins an election, as a top priority it is to rush through some main bills, which they have not had a time to think out properly, but then they should come back with a revised bill after they've been in government and have a chance to work it out.

And the point about skeleton bills is, the details which were filled in later can seriously affect the public. And they're not on the face of the bill. And the details filled in later may never be debated. And we have said that we have seen some bills, which are no more than just a wishlist of aspirations. And the number of skeleton bills is increasing all the time.

Now, since January 2018, we've had the Taxation Cross-border Trade Bill giving ministers over 150 separate powers to make tax law binding on individuals and businesses, not on the face of the bill.

The Medicines and Medical Devices Bill, we say that had very wide powers to almost completely rewrite the whole existing regulatory framework for human and veterinary medicines and medical devices. No doubt, the Department of Health will want to make all the right moral judgments, but Parliament may never see the details of that bill.

Now, let me give you a good example of what skeleton legislation is. There was a bill called - and again, most people don't care about this, unless you're in the freight transport business or a lorry driver - the Haulage Permits and Trailer Registration Bill contained 24 clauses, 16 of which had delegated powers.

This is how the first five main clauses of the bill begin. Clause one, regulations may prohibit the operator of a goods vehicle from using it. Two, regulations may make provision as to how it is to be decided whether to grant an international road license. Clause three begins, regulations may authorize the Secretary of State to grant a temporary exemption. Clause four, regulations may make provision enabling a person to appeal against the decision. Clause five, regulations may authorise the Secretary of State to charge a fee of an amount specified in the regulations.

Now, a bill which begins without giving any detail of the guts of it but begins with regulations may do whatever it ruddy well likes is very bad law. And the other trick we complain about, those first two clauses say, "Ah, when the regulations are made the first time, it can be affirmative procedure, but from then on, the regulations are bound to be just minor technical stuff, which can be negative."

That can be an absolute outright, disingenuous comment, shall we say? Because sometimes the regulations made the second, third and fourth time could be as serious as the first one and all the rest were negative.

We don't know, I haven't seen what those regulations are, but it is not right that a main bill should just begin with saying, regulations may fill in the detail of this as, and when. Let me give you a different example from the current police and sentencing bill where my committee said, that in clause 36 (1) and 39 (1), which allowed for specified persons to extract information stored on an electronic device and it was to give powers to extract confidential information.

We said, "It contains an inappropriate delegation of power.” It leaves all the regulations, not on the face of the bill and this is a very serious thing, extracting confidential information. And the government said yesterday, "The government accepts the committee's recommendation and will bring forward amendments at report stage to place on the face of the bill provision about the exercise of powers to extract confidential information. That's removing the regulation making power, currently found in clause 41.

So the government are doing exactly the right thing, putting on the face of the bill, the details of something which is very sensitive and affects the freedom and the privacy of the individual. They should have built that in, on the very first day they were inventing this bill. But they've done now, belatedly, but still right.

Matt:

Henry VIII powers. We still need to let our listeners know exactly what a Henry VIII power is. Does one of you want to briefly describe what that is and why we should be concerned?

Lord Hodgson:

Well, I'd give you one sentence. Go and read Hilary Mantel on the work of Thomas Crowell and his relationship with the king. The king wished to have opportunities to bypass Parliament effectively. And therefore, he built in this opportunity to be able to say the regulatory framework, which meant Parliament, was in a less strong position.

And it's part of the struggle between the Crown - the executive that is today - and Parliament. It's the opening bit of that and it is a battle that's gone on ever since. And it is a battle which Lord Blencathra and I, are saying that at this moment, the legislature is losing and the executive, the government, the Crown and the Henry VIII case are tending to win. And we are worried about that for the future of our democracy and the ability of our citizens to understand and influence and buy into the regulations that they are being forced to accept.

And it flows from something as simple as the struggle in Henry VIII forced supremacy, which you can read about in the 900 pages in Hilary Mantel's books.

Lord Blencathra:

582 years ago, Henry VIII decided that because - and it's partly much to do with marriage and divorce issues as well - he was going to bypass Parliament and make law by proclamation. He was the king, and he had the right to make law himself and ignore Parliament. So he passed law by proclamation, which didn't last too long, actually as a law.

But since then, various governments have, because of the powers they can build into an Act of Parliament, they have adopted similar Henry VIII powers. First raised by the House of Lords in the Lord Donoughmore Committee in 1932, complaining about Henry VIII powers, actually.

And then, after the war, it went quite quiet because after 1945, for about 30 years, there were very few Henry VIII powers used, but then they started to take off again in the seventies. And of course, they're called Henry VIII powers now because in the Act of Parliament, the government builds in the power, not just for of the minister to make new secondary legislation, but he can use his power to scrap existing Acts of Parliament or whole sections of them.

So, we've even seen in one bill where the Henry VIII power would've permitted the minister to scrap any Act of Parliament, right back to 1066. I mean, theoretically, he had the power to scrap the Bill of Rights, but he wouldn't dare do it. But of course, government departments say, "Oh, well, yes, we've taken these extreme powers, but we don't intend to use them." And my committee says, "Look, it's not what the minister says he's going to do that matters. It's what the law permits any future government to do."

So if the law allows a minister to scrap a section of an existing Act of Parliament, rewrite an existing Act of Parliament going back hundreds of years, or just completely abolish it, then that is not right. That is a Henry VIII power, which is far too abusive.

We do accept, in the European Withdrawal Bill, we needed some Henry VIII powers in order to rewrite European legislation and do it in a 12-month period. But there, the government built in a sunset clause. A sunset clause was, we can use these draconian Henry VIII powers for a few years, but after, I can't remember what date, the powers no longer exist. And if we want to change European law, we put a bill through Parliament. We don't at the stroke of a pen change it in the minister's office.

Lord Hodgson:

I think that point that Lord Blencathra made about the ability to amend primary legislation is really critical. And I think because that undermines a very central plank of whole statutory system, which is that every bit of statute, that all primary legislation is seen in detail by both Houses of Parliament.

There is an additional worry that he has, which I share, as to how in the wrong hands, because all the time, these ministers, as he's pointed out, say, "We're going to use this responsibly." Well, yes, minister, I know you and you seem a decent person and I'm sure you are, but this power is going to last after you've gone. And who knows quite what your successors will be like. And the road to hell is paved with good intentions.

Lord Blencathra:

I think you were going to ask about how's this got worse with Brexit? Well, it has in a way, the Brexit legislation and the COVID legislation, all emergency stuff had some Henry VIII powers. And a lot of that was legitimate and is legitimate and needs to be used.

But my committee detected that after Brexit and the EU Withdrawal Bill, a lot of other government departments seemed to say, "Oh my God, that's a wonderful idea. We'll build in a Henry VIII power just in case we need it." And you had some bills, trivial, small and important bills doing a one-off thing building in Henry VIII powers, just in case the permanent secretary thought, "Oh my God, we can use this in future. We never need to go back and go through Parliament again. I can change any law I like in my department with this power."

We've got a bill going through at the moment, the ARIA Bill, the advanced research bill and that has built-in a Henry VIII power, not just to change past legislation, but to change future legislation and to abolish itself by regulation. Now, that is the weirdest thing we've ever seen, because we're going to pass this Act of Parliament through the Commons and Lords, and it's going to have power by regulation to abolish itself.

Now, if the government decides in five, 10 years’ time, this ARIA thing is no good, or we can't afford it, or it doesn't work, it's a simple matter to put through a small bill, getting rid of the thing or abolishing it. But to build in a power for the minister, at the stroke of a pen by a regulation to abolish itself, an organization, which could have hundreds of staff, billions of pounds invested in it and an Act of Parliament, is bizarre. But it's this, ‘we'll put in the power just in case we need it. And we don't need to trouble the pretty little heads of Parliamentarians’. But an arrogance we detect in some other departments, particularly on guidance where they-

Lord Hodgson:

I think again, picking up on Lord Blencathra’s point just on sunset clauses. And I don't want to go back over the stuff we discussed already, but impact assessments and explanatory memoranda. Impact assessments are by understanding not required for a regulation that is going to last less than 12 months. So, if you have a sunset clause of less than 12 months or regulation for the sunset clause, that is less than 12 months, then of course you say, ‘Well, I'm not producing impact assessments because it's only a short-term thing. And in any case, it's understood that we don't have to do it.’

And then you decide, ‘Well, actually it still going on. So, I think we're going to extend the sunset clause and then we're going to extend the sunset clause again.’ So, by the end of this, you may have had a regulation that's been running for two years, but you don't produce an impact assessment for it, even though you've now broken the understanding that anything that lasts for more than 12 months should have an impact assessment tied to it.

So this way you are able to do a sort of legislative grandmother's footsteps. Every time you turn around, they're not moving, but when you are facing the wall, they're moving.

Matt:

And Lord Hodgson just, I mean, we are getting a really good sense here and thank you for the sort of scale of the issue here. How many pieces of secondary legislation does your committee review each year? And have you got enough time for it?

Lord Hodgson:

Well, 901 was the number for last year. Now again, one must be careful not to be alarmed. Don't forget a lot of these will be negative resolutions and therefore will not be of controversy. But I mean, if you go back and trawl through our reports, which come out, as I say, every Thursday, one coming in a few minutes from now, or may even be out by now, you will see that most weeks we are picking up two or three things that we think the House ought to have regard to.

And when I say we, we have a terrific staff who work extremely hard over a huge range of issues. And without them, we, as a committee and the country’s democracy would be much weakened. But nearly every week, there's something where we're saying, we draw the attention of the House for this or that reason. Some of them are not important, but nevertheless, they're things where we think the House ought to be aware. There's something here you might like to know about.

Lord Blencathra:

Yes. The officials work incredibly hard, my committee is in some ways, an easier time, we don't need to meet every week because we don't have a mega bill in front of us every week. Well, for example, my committee looked at about 10 Private Members’ Bills recently, and we've only reported in two or three of them because others didn't have delegated powers. And we said ‘nothing to do with the committee, we're quite happy. Let them through.’

We will meet on Wednesday, the 15th of December to consider the Health and Care Bill. Now, I cannot say what the committee's conclusions will be. I haven't seen our lawyer's detailed assessment yet, but I've looked at it personally and I can count over 150 delegated powers. This bill is not even a skeleton. It's just got a tibia and a fibula. There's nothing much else left on it. It is an extraordinarily bad bill in terms of delegated powers in my personal opinion, as chair of the committee. And I've been doing it for three years now.

              And when we report on that, it will be interesting to see what the Department of Health says. This may be very unfair, but I suspect the attitude will be, "’Look, we're terribly important. We're bogged down in COVID we’re doing morally good things to save the nation. Therefore, we can bash through a skeleton bill and we'll fill in the details later because we're doing God's work in saving people.’ I suspect an attitude which will be quite wrong.

In our report, we've complained about all the things wrong with delegated powers, but we haven't just left it as a complaint list. We've come up with a solution because we detect that by the time the ministers and the Commons are starting to talk through the bill in the Commons it's too late. It's been drafted by people, by excellent lawyers, no doubt, good lawyers, the 50 people in the Office of the Parliamentary Counsel, who’re following the Cabinet Office guidelines of on how to draft bills.

Now, the Cabinet Office guidelines run to over 200 pages, and we say they are not fit for purpose anymore, as far as one chapter is concerned. Because if you are a brilliant young whiz kid lawyer, and you've joined the government drafters department, you'll read the manual and you'll learn every crafty way in order to get legislation through - how to number the paragraphs, what words to use. But it doesn't tell you in there one word about Parliamentary sovereignty and the necessity to balance clever drafting against giving Parliament some say in the legislation you are creating.

So our report, we will issue new guidance to all ministers, hopefully get it in the next couple of weeks and to the permanent secretaries and to the Cabinet Office and to the Office of Parliamentary Counsel saying, ‘These are the principles we want you to follow. All your delegated legislation must be accountable to Parliament in some way, either we debate it or we look at it or at least you lay it in the library of the house, so we know it's there. And you must follow the principles that Parliamentary sovereignty means that Parliament has got a right to see these things, not just the great and the good or your stakeholder experts outside.’ And we hope to build that in, so the people drafting bills take account of all our criticisms at the start.

So when they're writing a bill and think, ‘Oh my God, the Henry VIII powers, we better be careful. Well, this is tertiary legislation, we better draft it more carefully. Oh, this is disguised legislation, we better be careful how we draft it.’ And if we can get them to change it at that stage, then I'm certain that ministers and the Commons will be putting through better bills and we in the Lords will have fewer complaints.

Lord Hodgson:

I wanted to address one last point, which is rather more gritty. And that is that the government will say, ‘Hang on, both houses approve this legislation.’ It all goes through. All the regulations are passed through. Both Houses will have to approve it. They're required to.

Now, the reality is that we know that is not a fair summary of the level of scrutiny being applied. The truth about it is, you cannot amend a regulation. So you either have to blow the whole thing out of the water or pass it wholesale. I mean, you may only have a worry about one section of it. I mean, maybe we would be worried about different definitions of face-to-face or otherwise engaged and that could be as narrow as that, but you can't amend. So you have what I call the nuclear option.

And when the Lords, because as we discussed earlier, we are the house that does the most work on this, the unelected Lords says, ‘We're going to blow this piece of legislation out of the water,’ a full-scale constitutional crisis ensues because the government says, ‘It's the unelected Lords frustrating the will of the elected Commons,’ which of course is a travesty of the facts. It is a truthful statement, but it does not reflect the reality of the situation. And we've got to find a situation, as we do more stuff by second legislation, we are going to have to find ways to improve the means of scrutinizing it.

So, both houses on behalf of the country are able to see and make amendments to these very wide-ranging powers that the government has increasingly sought to take and use, and not get away with saying, "Don't worry about this. It's all approved by Parliament anyway," because that is not a realistic assessment of the true state of scrutiny.

Lord Blencathra:

Yes. And Lord Hodgson again is absolutely right there. And let me make it clear when we published a report, some press, I think particularly in Scotland saying this was an attack on Boris and his wicked government, that is not the case. This is not an attack on the current government being worse than the previous ones, all governments in the last 30 years have been pushing the boundaries of delegated powers and that has happened consistently.

So I think we need to make it clear that we are suggesting solutions here as well. None of what we propose sabotages any government's policy, Tory, Labour, Lib Dem coalition, doesn't matter. We don't stop bills. We don't sabotage them. We don't stop a political agenda going through. We are merely suggesting ways that the scrutiny of the delegated powers come under more Parliamentary control.

And now we're out of the EU. There is no excuse not to do this. So many bits of legislation in the past, the government can say, ‘Oh, we can't amend it. We can't change it. It's EU, we've got to implement it verbatim.’ That excuse is now no longer valid. So therefore, there should be no problem where Lord Hodgson's committee points out that a piece of delegated legislation is flawed. There should be no problem, the government taking it back, rewriting it and reintroducing it.

And we've used the nuclear option - that is stopping something - six times since 1945. And the last time caused a big row and the Strathclyde report and so on. The government eventually admitted they were probably wrong in what they did, but that is the nuclear option of voting down something in the Lords, it's very rarely used and rightly so. But because we only use it rarely, the government should bring in a system in future where we can change it and improve it.

Matt:

Well, thank you both very much for joining us today and giving us a full understanding of delegated legislation. We look forward to seeing the government response to your reports.

Lord Blencathra:

Okay. Yes. Thank you.

Lord Hodgson:

Thank you very much.

Amy:

That’s it for 2021 in the House of Lords Podcast, we’ll be back next year with more from the second chamber.

In the meantime, have a lovely Christmas and we’ll see you in the new year.