Baroness Neville-Rolfe (Con)

- View Speech - Hansard -

Copy Link

- - Excerpts

My Lords, I welcome the opportunity to debate this important matter. I am especially grateful to the noble Lord, Lord Thomas of Gresford, for warning me of his intention and for his clear and very amusing explanation of recent history.

I thank the other speakers, including my noble friend Lord Hunt of Wirral, the distinguished chair of our Secondary Legislation Scrutiny Committee, which does such a wonderful and often unheralded job in sifting through thousands of SIs, both negative and affirmative, the latter being the subject of this Bill.

I agree with the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Wallace of Saltaire, that impact assessments are important—I always used to say that from the Back Benches, as many will remember.

I welcome the noble Baroness, Lady Anderson of Stoke-on-Trent, to the Dispatch Box for the Cabinet Office and very much look forward to hearing from her.

The arguments have been well made. However, I believe that the Bill as drafted has major constitutional implications. We need to consider it very carefully and, as far as possible, in a spirit of non-partisanship. The most significant effect of the Bill if enacted is that it would leave the House of Lords with greater theoretical power than the House of Commons across significant sections of rules and regulations. Is this credible? Much as I love this House, I fear the answer is no.

I have a number of other points to make. Having lived with fellow Peers through the relentless increase in the use of secondary legislation, I have sympathy with the objectives of the noble Lord, Lord Thomas of Gresford. Under the provisions of the Bill, only the House of Lords would be capable of triggering a mechanism to amend a statutory instrument. There are no provisions in the Bill that would allow concerned MPs to instigate a change themselves. It would be decidedly odd for elected Members of Parliament to find themselves in this position of inferiority; it would undermine the primacy of the House of Commons.

The noble Lord, Lord Thomas of Gresford, claims that the provisions in the Bill, which would require the Commons to debate the concerns of the House of Lords, would ensure that the balance of power remained as it should. However, as we know, Parliament is a busy place and the House of Commons schedule is already packed. The mechanism suggested here would only add to that in an unpredictable manner.

Further, it concerns me that the Bill might enable an interventionist or troublesome House of Lords—perish the thought—to obstruct the actions of a Government by amending a succession of draft affirmative statutory instruments. While the noble Lord believes that in practice the suggested mechanism would not be used more frequently than regret Motions, there is nothing in the Bill to ensure that that is the case.

At first sight, Clause 2, which nobody has mentioned, looks unobjectionable. I do remember my fury at the business department when I inherited SIs that needed to be corrected because of typos or sloppy drafting. However, there is an unfortunate lack of precision in the Bill. What would constitute a “substantive error” as opposed to an error? I might also ask how a Minister could correct an instrument to achieve a so-called “intended effect” when he or she has no defined means of ascertaining the intention of Parliament.

I believe that the lawyers who draft statutory instruments should get them right first time—a principle of mine. It stands to reason that, should we make it easier to repair errors in secondary legislation, there would be less pressure to ensure that the initial drafting was clear and effective. Further, if it became easier to tweak secondary legislation, I believe, from my experience as both a civil servant and a Minister in many departments, including the Cabinet Office, that it would reduce the impetus to craft good primary legislation.

We have an ever-growing problem with the amount and content of secondary legislation. The noble and learned Lord, Lord Thomas of Cwmgiedd, called it an “addiction”, while the noble Lord, Lord Thomas of Gresford, rightly mentioned the Product Regulation and Metrology Bill, which will introduce huge delegated powers, including alignment with EU law, on matters of real substance. Similarly, the Water (Special Measures) Bill grants significant power to Ministers to make regulations under the legislation, and the Government expect this House to pass it without sight of the draft regulations.

We cannot allow what the Delegated Powers and Regulatory Reform Committee terms “skeleton legislation” to become the norm. We should also look back at the agriculture and environment Bills, which on our watch also overuse delegated powers, as I argued at the time. The fact is that Governments of all colours should know what they are doing when they introduce Bills and not just take wider powers to do what they like. I sound like the grandmother that I am but, when I was a civil servant, we drafted the statutory instruments alongside the legislation and consulted on them as well. A power to think again could provide yet another excuse for initial sloppiness in parent primary legislation.

For the reasons I have stated, this side of the House has doubts about the Bill. Of course, as part of comprehensive reform of the House of Lords, there might be scope for increasing a second Chamber’s control of legislation, and that could include secondary legislation. That could mean better use of the wide experience and expertise of many noble Lords. However, that is a much bigger topic, requiring widespread agreement across the political parties on the way forward. I believe we need more comprehensive reform, rather than bits and pieces—one of the reasons I regret the House of Lords (Hereditary Peers) Bill, although that is not for today.

In conclusion, I thank the noble Lord, Lord Thomas of Gresford, for leading such an important debate. However, I have outlined a number of concerns that I believe show that this particular Bill should not proceed.

Baroness in Waiting/Government Whip (Baroness Anderson of Stoke-on-Trent) (Lab)

- View Speech - Hansard -

Copy Link

- - Excerpts

My Lords, I thank the noble Lord, Lord Thomas of Gresford, for bringing forward this Bill. It has been an excellent opportunity to highlight the importance of secondary legislation. This Government place great importance on Parliament having the information it needs to scrutinise. From the introduction of the delegated powers toolkit to an enhanced training offer for civil servants at all levels, the Government are taking steps to demonstrate how seriously they take secondary legislation.

I also thank the clerks and advisers of the Joint Committee on Statutory Instruments, as well as the Secondary Legislation Scrutiny Committee and the Delegated Powers and Regulatory Reform Committee, for their diligent work in scrutinising the secondary legislation the Government lay before Parliament. I remind the House that my husband is a member of the JCSI.

I take this opportunity to thank the National Archives for maintaining legislation.gov.uk, which is a valuable resource for all Members of your Lordships’ House, as well as the general public, and for its work in administering the correction slip process, which the Bill would place on a statutory footing. With the greatest respect to the noble Lord, Lord Thomas of Gresford, the Government disagree that this is a necessary service for the correction of insubstantial errors. We remain of the view that there has always been a need to strike the balance between providing the Government with the flexibility they need to deliver for the country and ensuring that the information they provide is clear and explains why legislation is necessary.

Baroness Anderson of Stoke-on-Trent (Lab)

- Hansard -

Copy Link

- - Excerpts

The noble Lord makes an excellent point. As the Attorney-General has made clear in several speeches, that is absolutely the intention and objective of this Government’s legislative programme.

I do not wish to repeat the reasons why the Government cannot support the Bill. We will continue our efforts to improve the secondary legislation that is laid before Parliament, including the documents that accompany it, but we do not agree that further legislation is the way. I am grateful to all noble Lords who have participated at all stages of this Private Member’s Bill and for the opportunity to discuss the importance of secondary legislation. As ever, your Lordships’ House’s ability to scrutinise is second to none.