Baroness D’Souza on the encroaching power of the executive

Frances D’Souza

My really big concern is the increasing power of the executive; this has been going on for years and years. It’s becoming extreme at the moment whereby we are getting bills which have been passed by the Commons which are essentially what we would call skeleton bills. These are really just broad outlines – and all the detail is being inserted by means of statutory instruments and secondary legislation which is unammendable.

In the Lords our options are limited if the government decides to do that. We can either put down what’s called a fatal motion and vote on it and win. That’s extremely rare and has happened only a handful of times since World War II. The last time we did it was in relation to Universal Credit. This motion was overwhelmingly supported by peers on all sides of the House, include Tories. But it was so frowned upon by the powers-that-be that they commissioned a special enquiry into the power of the House of Lords.

Of course this whole question goes all the way back over a hundred years to Lloyd George and to the Asquith administration, and the passage of the legislation which curbed the power of the Lords. The Parliament Act means that the Lords can create a delay of a year but it also ultimately means that the government gets its way. That’s right when you consider that the Commons is elected and the Lords isn’t.

Even so, we’re now at a point where the government is getting all sorts of things past Parliament because of unchallengeable executive orders. I find this truly worrying. The person who did the most on this was Igor Judge, who sadly died in November 2023. He was a convenor in the House of Lords and an absolutely masterly speechmaker. He will be sorely missed.

The only really effective check on government action are the Select Committees. These at least have the effect of making Ministers wary about what they do because they are going to have to answer to them. That fact alone makes the Public Accounts Committee, the Constitutional Committee, the Foreign Affairs Committee and so on quite powerful. But in the end these encounters occur after the event and that of course places severe limits on their power.

You might recall also that Dominic Cummings refused once to attend the Digital, Culture, Media and Sport Committee. I had thought up until recently that to refuse to appear before a Select Committee was a sort of hanging offence and that the Committees had the power to command Ministers to attend. That turns out not to be the case.

That particular episode makes one wonder also whether there should be parliamentary oversight of the appointment of special advisors – or SPADs as they’ve become known. Look, for instance, at the appointment of Richard Sharp as Chairman of the BBC. Regardless of the rights and wrongs of that, the perception was always very dicey: he was somehow involved in brokering a loan for a very needy and irresponsible Prime Minister and then, hey presto, he became the chair!

This isn’t an isolated instance. The government puts in people who it knows will be safe on their terms: it shows the way in which democracy can be undermined. We cannot escape the fact that the institutions of democracy are increasingly in the gift of the government.

In a curious way, the Conservatives had the antithesis of all this in the shape of Lady May. Whatever one might think of her premiership, she is extraordinarily respected today as a backbencher: she embodies that sense of public duty which has all but left government. I had a drink with her shortly after she stepped down and I said: “I don’t know how you get out of bed in the morning when they’re treating you like that.” She replied: “You can do it if you think it is right.” It is impossible not to respect that.

I got a different answer with another former prime minister in a similar encounter. I once asked Sir John Major why he didn’t come to the Lords and he said: “I have been so bruised by politics, I just can’t go near it.” Well, who can blame him?

Frances D’Souza is a former Speaker of the House of Lords