Starting a rebellion against secondary legislation

Did you know that the Government are able to wave through masses of tweaks to the law with little to no scrutiny by a process called “secondary legislation”?

This secondary legislation receives only the scantest parliamentary scrutiny – it is offered on a “take it or leave it” basis – MPs and Lords are not allowed to make any amendments. And while it is theoretically possible for Parliament to block this secondary legislation, in practice it almost never happens. The last time the House of Commons defeated secondary legislation was in 1979, and the House of Lords deliberately avoids blocking them. It is a massive democratic deficit which only continues to grow.

The role of secondary legislation came under intense scrutiny during the passage of the EU Withdrawal Bill (now Act). The House of Lords undertook its role as the “defenders of the constitution” by challenging the Government on the huge powers that they sought to grant themselves to be able to use secondary legislation to even amend Acts of Parliament. We defeated the Government by large margins, which included dozens of Tory peers who knew that what the Government was trying to do was morally and constitutionally wrong. But sadly, the Government used their majority in the House of Commons to rip out all of the safeguards that we put in place.

There are big concerns that these new Brexit powers can be used by the Government to do a whole load of nasty things with minimal parliamentary scrutiny. These are called Henry 8th powers because they allow Ministers to act like dictatorial monarchs.

These are exceptional executive powers and therefore require a new exceptional response.The best that Parliament can currently muster is to have a “debate on a neutral motion” – i.e. hold a talking shop that doesn’t actually threaten any change. Debate is important, but we only have power when we have real opportunities to defeat the Government.

As a result of all this, I’m going to try and build a rebellion in the House of Lords. I want to work cross party to defeat some of the worst secondary legislation, like the Government’s attempt to extend approval for the use of child spies from one month to four months. I’ve identified the necessary procedural motions, we have to “table a motion to pray against the instrument”, which means that I can force a debate and a vote. If the Lords votes by a majority against the secondary legislation, then it does not pass into law and the Government has to go back to the drawing board.

The Lords must stop sitting on their hands. Peers are not democratically elected (that needs changing), but they are there to provide a balance. They can’t do this when Ministers can by-pass the usual channels to get their ideas through.

It’s time that Parliament takes back control.