Statutory Instruments (Amendment) Bill [HL]
(1 day, 16 hours ago)
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Lord Thomas of Gresford (LD)
My Lords, your Lordships will remember the controversy in the House in 2015 over the regulations withdrawing £4 billion of tax credits, affecting 3 million people. Everybody had a go: opposition to the Government’s measure outside the House was led by the Mayor of London, one Boris Johnson; the Liberal Democrats laid a straightforward fatal Motion, which did not pass; and the Bishops laid a regret Motion, which was pre-empted. The amendments by the noble Baroness, Lady Meacher, on the Cross Benches and by Baroness Hollis, who will long be remembered for her acuity and her passion for Labour causes, succeeded. Their amendments were to decline to consider the regulations until the Government had undertaken certain actions—in particular, consultation and a consideration of an analysis by the Institute for Fiscal Studies.
Although the Clerk of the Parliaments had advised that these were not fatal amendments, the Government treated them as such. The noble Earl, Lord Howe, said there was only “a binary choice”: approve or disapprove. The noble Baroness, Lady Smith of Basildon, then Leader of the Opposition, said this:
“We believe that our Motion is the only one that can lead to meaningful change. It gives Ministers the opportunity to take a step back and listen properly to the clamour of voices calling for them to think again. That is the right role for your Lordships’ House to take”.—[Official Report, 26/10/15; col. 1022.]
Today’s Bill creates a mechanism that will allow the Commons, if they have already approved the instrument, and, more importantly, the Minister who promotes the secondary legislation to think again.
On 27 October 2015, the day following the passionate tax credits debate, the Times headline was: “Osborne vows to rein in Lords after humiliation”. There were threats that 150 Conservative Peers would be created—well, that happened anyway. But on that following day, the day of the Times headline, something very interesting happened in this Chamber: there was a different fatal Motion on a different subject, electoral registration. It was moved by the noble Lord, Lord Tyler, on behalf of the Liberal Democrats. The noble Lord, Lord Kennedy of Southwark, then the Labour home affairs spokesman, moved an amendment—with some passion—to strengthen our Motion, which the noble Lord, Lord Tyler, duly accepted. It succeeded by 10 votes. The Labour-amended fatal Motion was then immediately put to the House but, to the Liberal Democrats’ surprise, was defeated by 10 votes. An analysis of the voting shows that 11 Labour Peers had failed to go through the Lobby again. I cannot believe that their dinner engagements were so pressing that they could not have delayed the five or 10 minutes necessary to walk through a second time—we do it all the time in this House.
The Labour Party in opposition, presumably as a matter of policy, did not support any fatal Motion thereafter, even through all the Brexit legislation. It had some reason for caution: the Tories had brought out their most effective howitzer, the noble Lord, Lord Strathclyde, to carry out a review, and in particular to consider
“how to secure the decisive role of the elected House of Commons in relation to its primacy on financial matters, and secondary legislation”.
His review, when it emerged, was prefaced with an introduction:
“The Lords convention on statutory instruments has been fraying for some years”,
and it was
“imperative that we understand better the expectations of both Houses”.
He considered three options, the first of which was the removal of the House of Lords from statutory instrument procedures altogether. That he rejected, but he did recommend that a new procedure should be created, set out in statute—note that: in statute—allowing the Lords to invite the Commons to think again when a disagreement exists, although still insisting on Commons primacy. I believe my Bill does just that.
As pointed out by the DPRRC, the SLSC and the Constitution Committee in a series of reports, the noble Lord, Lord Strathclyde, and his distinguished advisers had been tasked with the wrong question. The key concern was not the primacy of the House of Commons; the relationship at issue, these committees held, was the balance of power between Parliament and the Executive.
The Government’s response to the Strathclyde review was to do nothing. The Leader of the Commons, David Lidington, said that the Government remained concerned that there was
“no mechanism for the elected chamber to overturn a decision by the unelected chamber on SIs”.
Again, I believe my Bill deals with that issue.
This Bill does not come out unaided off the top of my head. Not only have I paid regard to the views of the noble Lord, Lord Strathclyde, in his review but it follows from the work being done by the Hansard Society in relation to secondary legislation. I am very grateful to the society for the hard thinking it has put into it.
The amendment to the 1946 Act in Clause 1 introduces a simple mechanism: when the House of Lords is considering the approval of a draft statutory instrument under the affirmative or “made affirmative” procedures, it may withhold such approval, as suggested by Baroness Hollis in 2015, pending the resolution of concerns which are to be communicated to the House of Commons. The mechanism would be by message, as usual, and when that message is received the Minister would be required to table a Motion in the Commons to debate the House of Lords’ concerns. The Commons may reject those concerns, in which case the instrument comes back to the House of Lords either to approve or to disapprove as drafted.
The Commons may, on the other hand, request that the Minister make amendments to the instrument to reflect the concerns it has received. The primacy of the Commons is entirely observed by this proposal. I recognise that the Minister, in tabling a draft statutory instrument in the first place, is exercising a power granted to him or her by Parliament in an enabling Act. This Bill does not interfere with that prerogative. With subsection (4), the Minister has a choice, within 40 days of receipt of a request from the Commons, either to withdraw the draft instrument or to lay a further copy, as amended or unamended, in the usual way. Where the draft instrument is re-laid, amended or unamended, that is it—no ping-pong or agreement between the Houses. The Lords has no second opportunity to voice concerns.
I have been advised that to amend the negative procedure would be technically tricky. Accordingly, as a first step, I have concentrated on the affirmative procedures. Clause 2 puts into statutory form an existing non-statutory slip rule, and Clause 3 is a technical consequential.
Two points remain. First, how frequently would this House use the conditional amendment power proposed? The assessment of the noble Lord, Lord Strathclyde, so far as his option was concerned, was that in practice there would be no significant increase in Motions to amend. Similarly, I would expect the mechanism in this Bill to be used to express concerns in place of Motions to Regret, but it would be more positive and constructive, and no more frequent than the current use of that procedure.
Secondly, what concerns would be addressed? An analysis of the successful regret Motions passed in the last two Sessions—five and four Motions respectively—shows that, apart from two attempts to introduce by secondary legislation matters that had previously been rejected in primary legislation, the main concerns have been failures by the relevant Minister to have regard to an impact assessment or other information from outside sources, and lack of consultation, which should have informed and influenced his decision. For instance, in the modern slavery regulations, there had been no consultation on the definition of “slavery and trafficking” and, consequently, the scope of those regulations was argued to be too narrow.
The fundamental problem with the present procedures is that secondary legislation is unamendable. All the regulations relating to the nine regret Motions on which the Government were defeated went through anyway, as laid, without any amendment. This Bill will encourage a discipline which will ensure that policy is set out in amendable primary legislation. That will mean fewer skeleton Bills like the unfortunate Product Regulation and Metrology Bill, which, disappointingly, is limping through the House at this, the earliest moment of this Government’s legislative programme.
I began with quotes from the Leader of this House and the Lords Chief Whip in the new Government. I end with a passage from the new Attorney-General, the noble and learned Lord, Lord Hermer, from his excellent Bingham lecture on Monday of this week. He said:
“Excessive reliance on delegated powers, Henry VIII clauses or skeleton legislation upsets the proper balance between Parliament and the Executive. This not only strikes at the rule of law values that I have already outlined but at the cardinal principles of accessibility and legal certainty”.
He continued:
“In my view, the new Government offers an opportunity for a reset in the way that Government thinks about these issues. This means, in particular, a much sharper focus on whether taking delegated powers is justified in a given case, and more careful consideration of appropriate safeguards”.
I hope the safeguard that this Bill envisages will appeal to him. I beg to move.
Lord Hunt of Wirral (Con)
My Lords, I first declare my interests as set out in the register; in particular, I have the honour to chair the Secondary Legislation Scrutiny Committee. I congratulate the noble Lord, Lord Thomas of Gresford, on putting forward this measure, and I have to tell him that I am favourably disposed to his Bill. I also congratulate him on the most enjoyable journey into the history which he has given the House.
However, I speak in a personal capacity; I do not seek to speak for the committee I chair or for the party of which I am a member. Before I joined the SLSC, I was aware there were serious shortcomings in far too much of the secondary legislation that continues to burgeon under Governments of every hue. I just had no idea how serious the problem was.
I agree with the noble Lord, Lord Thomas of Gresford: the system we have is anachronistic. Despite our best efforts and those of our excellent but small team of clerks, we struggle to cope, not only with the sheer volume of secondary legislation but with its all too frequent inadequacies.
The reasons why an instrument might fall short are set out in the terms of reference of the SLSC, in section 3. Despite repeated ministerial undertakings, inadequate explanatory material is the principal culprit—seemingly an endemic problem across almost every government department.
I am very proud of the work we do and of the absence of partisanship across the committee. However, if the ever-expanding reliance upon secondary legislation is now to be a fact of life, we can no longer rely on rules and conventions designed for an earlier era. Although we provide a useful service to the House in pointing out when an SI falls short on one of the grounds, it is frustrating that in response to that scrutiny this House can do no more than object in the form of a regret Motion. It would improve the quality of secondary legislation and the balance of power between the legislature and the Executive if there were a stronger mechanism for the House to object to an SI, while still falling short of rejecting it altogether. This is exactly what the noble Lord, Lord Thomas, is proposing. I congratulate him on his initiative and look forward very much indeed to hearing the Minister.
Lord Thomas of Cwmgiedd (CB)
It is a pleasure to follow the chairman of the committee on which I also have the honour to sit. I support what the noble Lord, Lord Thomas of Gresford, has put forward, congratulate him on his clear explanation and agree completely with him that the process must be amended by primary legislation. This Bill provides one step, but a very important step, in getting the balance right. It may be thought to be a matter of importance only to constitutional nerds and lawyers. It sounds very uninteresting, but this is a matter of great importance for two reasons. First, the Attorney-General in his Bingham lecture explained why it matters to the rule of law, but it also matters to the form of government we have. Secondly, the form of government we have now, as the three Nobel prize winners earlier this week have shown, is essential to economic prosperity and growth, so we cannot put this in the category of “not important”. It is central that we get some reform.
As the noble Lord, Lord Thomas, pointed out, the Attorney-General said in his lecture on Monday that a sharper focus on taking delegated powers is justified and there must be more careful consideration of the appropriate safeguards. I hope that, today or on a subsequent occasion, the Minister will be able to set out the concrete steps the Government intend to take to remedy this terrible problem. May I make three suggestions? First, it is plain that the Government have an addiction to delegated powers, the use of which became extremely extensive during Brexit interlude. There may have been reasons, but we must stop using them so much. The fact that the power is there does not mean it has to be used. I hope one of the steps we can take is to make Governments explain in Explanatory Memoranda why they are using delegated powers, rather than simply just using them. Breaking an addiction is difficult, but we have to take positive steps.
Secondly, there should be a requirement, save in exceptional circumstances, that no draft instrument be put forward without an impact assessment where the amounts at issue cannot be proved to be below the threshold for the provision of such an impact assessment. We need to return to the principle of good government: policy first, fully costed legislation second.
Thirdly, although the Secondary Legislation Scrutiny Committee is taking great steps to improve matters through league tables, they are no substitute for a proper government department to supervise the standards of ministries, which differ enormously.
Lord Wallace of Saltaire (LD)
My Lords, this is a modest but constructive proposal for a change in the way in which Parliament and the Government interact. I very much hope that the Government will welcome it and give it their support or take it forward in some other way. We are talking about balance: the very important balance between Parliament and the Executive, and the equally important balance between primary and secondary legislation.
There is a major underlying principle that I have become more and more irritated about during my years in this House. One hears people talking about the principle of parliamentary sovereignty—how that is the foundation of our constitution—but the reality, we all know, is prime ministerial sovereignty, Executive dominance and “elective dictatorship”, as a former Lord Hailsham described it when in opposition. He of course did not think that way when in government. I noticed that on the Conservative Front Benches only a week ago the noble Lord, Lord True, said, in effect, that this Government were behaving like an elective dictatorship. It is not something he would have been saying a few months ago.
One sees a new Government coming in and one hopes that the quality of governance will improve. So far, the signs are not good. One sees Ministers wishing to rush ahead with a whole set of proposals. One sees reports that Labour Whips are telling their MPs that under no circumstances are they to vote against any government proposals. That does not have much to do with parliamentary sovereignty.
What we saw under the last Government was a situation in which primary legislation got more and more like skeleton Bills, secondary and tertiary legislation increased and, as Ministers came and went every six to nine months, the belief that they should act immediately and push something else through meant that we had inconsistent policies and, frankly, increasingly bad government. Good government is slow and considered government, with rationales for what is being proposed and with impact assessments.
The Bill proposes that the Government should be willing to think again and that, when there is secondary legislation, some mechanism should be provided to make the Commons and the Government think again. I remind the Minister that the Delegated Powers and Regulatory Reform Committee’s report says:
“The abuse of delegated powers is in effect an abuse of Parliament and an abuse of democracy”.
We are not talking here about the primacy of the Commons; we are talking about the fundamental importance of parliamentary scrutiny for democracy in holding the Government to account.
The second report said that,
“if because of modern conditions Parliament is being asked to accept new ways of legislating, then it is surely right that the Government must stand ready to accept new methods of scrutiny”.
So I ask the Minister: will the Government accept that we need to change the rules? Do they also accept that that has to be done by primary legislation? Or do they agree with the comments of the Hansard Society that this could be done by changing the Standing Orders of both Houses? In which case, would the Minister agree to look into that and see how quickly it might be done?
Baroness Neville-Rolfe (Con)
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 Anderson of Stoke-on-Trent (Lab)
My Lords, I thank the noble Lord, Lord Thomas of Gresford, for raising the important issue of how we legislate and how we should legislate. It is the constitutional duty of this House to ensure that legislation that the Government bring forward is of the highest standard. I know that this duty is taken seriously by all Members of your Lordships’ House. The Government consider Parliament’s role in the legislative process to be of the utmost importance and hold the contribution of this House in the highest regard, taking seriously the comments and concerns raised by noble Lords, especially today. Your Lordships’ House’s ability to scrutinise is second to none, even if that does make it slightly terrifying for a new Minister.
I acknowledge the work over recent years of the Delegated Powers and Regulatory Reform Committee, the Joint Committee on Statutory Instruments, the Secondary Legislation Scrutiny Committee and the Constitution Committee. Their tireless work to support and scrutinise the creation and use of delegated powers, and the legislative process more broadly, helps to shape policy and uphold the high standards that Parliament and the public expect. Their diligent scrutiny and focus are an example of your Lordships’ House at its best.
I turn to the substance of the Bill. The issue of statutory instruments and, more broadly, the nature and scope of powers conferred to the Executive is not new. There has always been a need to strike a balance between providing the Government with the flexibility they need to deliver for the country and ensuring that the legislature can retain proper control over changes to the law. This debate is as old as Parliament and has been a running sore—perhaps most notably with the powers conferred by the Proclamation by the Crown Act 1539, which granted King Henry VIII sweeping powers to legislate by decree, without any semblance of parliamentary oversight as we would recognise it today. We can be thankful that the Act was repealed shortly after his death. That being said, the interesting debate today is evidence of the persistent and lively nature of the subject of delegated powers and the importance that Parliament gives to the legislative process.
Procedures for delegated powers have come a long way since Henry VIII—although it does not always feel like it—but that is not to say that the situation is perfect. This Government are clear that, too often, Parliament has been asked to approve overly broad and insufficiently constrained powers, and not been given the information it needs to fully scrutinise legislation. That is why this Government have pledged to do better—to respect Parliament’s role and to enable proper legislative scrutiny. To that end, I have a great deal of sympathy with the proposals before us. However, I do not believe that they are the right way to address the problems we see.
It is important to remember that Parliament already has the opportunity to scrutinise the nature and scope of powers during the passage of enabling primary legislation, as well as the content of statutory instruments when they are laid before Parliament. Parliament routinely requires that statutory instruments are subject to parliamentary scrutiny through either the negative or affirmative procedures. Under either procedure, once an instrument is laid before Parliament, Members of both Houses may scrutinise and debate its purpose and form, and even move to prevent it becoming or remaining law. Scrutiny of statutory instruments and delegated powers begins before a Bill even reaches Parliament. A high bar has been set to ensure that any delegated powers are justified. The Government have been clear that any delegated powers must possess a robust rationale, must be legally sound, and should not be taken in lieu of underdeveloped policy.
Indeed, my noble and learned friend the Attorney-General spoke passionately about the rule of law in his maiden speech, when he promised to guard against the abuse of the proper role of secondary legislation. The noble Lord, Lord Thomas of Gresford, quoted the Attorney-General’s 2024 Bingham Lecture, titled “The Rule of Law in an Age of Populism”—I think he will be delighted at how many noble Lords have followed his speech on Monday. My noble and learned friend spoke about the proper balance between Parliament and the Executive, saying that:
“Secondary legislation has an indispensable role to play in a modern, regulated society”,
but that there is a need for a
“sharper focus on whether taking delegated powers is justified in a given case, and more careful consideration of appropriate safeguards”.
I strongly believe that this is the right approach. This emphasis on adherence to good legislative practice ensures that primary legislation is specific and measured in the powers it grants, and that Parliament has ample opportunity to scrutinise any provisions for statutory instruments.
However, as the noble Baroness, Lady Neville-Rolfe, highlighted, the Government have specific concerns with the procedural processes set out in the Bill. They would require that a greater proportion of parliamentary time is spent on secondary legislation. Most draft SIs would be subject to the affirmative procedure, under which both Houses must debate and approve instruments before they become law. Subjecting these instruments to the possibility of further debate would, in effect, create yet another forum for relitigating debates that took place during the passage of the primary legislation.
Furthermore, the proposed procedure is asymmetric between the Houses. It would allow the other place to require the Government to withdraw and reconsider an instrument only on the initiative of this House. This would sit in tension with the fundamental principle of the primacy of the elected Chamber, and it is not for this House to tell the other how to operate. I think we can acknowledge that we would not welcome such an approach either from the other place, if they tried it. As such, the Bill in question would represent a significant step and fundamentally alter the way that government business is arranged, particularly in the Commons.
It is often statutory instruments on which the Government rely to respond to dynamic and emerging national and international issues; this is not something we would wish to restrict. I am sure we can all understand the negative effect that the Bill would have on this process, introducing the possibility of multiple, potentially drawn-out debates and votes on statutory instruments that would truly hinder the Government’s ability to respond to ever-changing national and international opportunities and challenges and take up precious parliamentary time. It is the opinion of the Government that our efforts should instead be directed at ensuring that we get the regulations right in the first place—that is to say, that they are drafted to the highest standard and Parliament is provided with the necessary information to hold the Government to account.
We are working hard to achieve this. The Explanatory Memorandum template has been revised to ensure that they are clear and meet the needs of Parliament and the public. We will review the template and guidance, which was published for the first time earlier this year, in the new year to ensure that it remains fit for purpose. We are also developing and delivering a range of training initiatives, including e-learning focusing on the project management aspect of secondary legislation, which will be available to all civil servants. This is complemented by a biannual programme of high-level seminars covering the delivery of secondary legislation, alongside an ongoing programme of workshops on the fundamentals of secondary legislation and how to draft effective Explanatory Memoranda. The team that develops these resources works closely with the SLSC secretariat. Ministerial training is now being delivered on a regular basis to ensure that Ministers have a clear understanding of the key issues, and understand the process around statutory instruments and broader delegated powers.
The noble and learned Lord, Lord Thomas of Cwmgiedd, asked about impact assessments. We agree that legislation should arrive in Parliament with all the necessary supporting documents to ensure that we in this place and those in the other place are best positioned to conduct appropriate scrutiny. We will do everything that we can to ensure that all impacts assessments are delivered when required.
Before I conclude, I thank the noble Lord, Lord Hunt of Wirral, for his contribution. I know that he has spoken in this debate in a personal capacity. However, I am grateful for all his work as chair of the Secondary Legislation Scrutiny Committee, and that of his committee—especially when I was in opposition and used much of it in debates on SIs in the Moses Room, and especially recommendations that it has made about the importance of seeing improvements to the Government’s approach to secondary legislation. I hope that he will be reassured by my response to the debate. I assure him that the Government have heard his arguments today, and as chair of his committee, and we look forward to continuing to work with him.
As the now shadow Leader so succinctly put it, in a previous debate before the House:
“It is the Government’s constitutional role, and indeed their right, to put before your Lordships … legislation they judge to be expedient to deliver on their manifesto commitments and to address the issues of the day. It is Parliament’s role to ensure that this legislation is effective, necessary and balanced”.—[Official Report, 6/1/2022; col. 793.]
Statutory instruments are often the appropriate device for such events. The Government have confidence that the existing processes are robust and fit for purpose. They necessarily provide the Government with the means to respond effectively to developing circumstances while upholding the constitutional duty of Parliament to scrutinise the laws that this Government bring forward. However, it is important to recognise that there will be times when the Government will not get this right. This process is not static.
This debate has been welcomed and heard by the Government, but I remind your Lordships that we are 106 days in. It may take us some time to get this right. If this debate has shown one thing, it is the noble intent of Members of this House to uphold the highest standards of scrutiny and legislative procedure. I commend everyone for that.
Lord Thomas of Gresford (LD)
My Lords, I thank noble Lords, who have spoken so well in this debate and are generally supportive—although perhaps not in all the detail that I would like. I congratulate the Minister on her response at the Dispatch Box, which was been extremely interesting and well said.
The noble Lord, Lord Hunt, referred to the anachronistic rules that we have at present, which he said smacked of an earlier era. The Minister went further, saying that it has been a running sore since 1539. It might be time to apply a patch or two to that particular running sore. I have not attempted to revise the whole of the statutory instrument procedure. It is a big task. I did not look at the negative resolutions at all. “One step enough for me” is a familiar phrase. This is a first step, which I commend to the Government, in their early days.
I thank the noble Baroness, Lady Neville-Rolfe, for her contribution and her good wishes, but she rather forgot the role of this House, which is as a revising Chamber. That is why we are here, to ask the Commons to think again—or the Minister, when they effectively are making the law, as happens with statutory instruments. That is what we are here for. There is no point in coming here otherwise. The suggestion that my Bill attacks the primacy of the Commons misunderstands what I am trying to do. This House should send a message to the Commons to think again. If the Commons says, “We are not interested; we will not think again”, then that is it. The Bill then comes back to this House and we either approve it or disapprove it. When the Statutory Instruments Act was passed in 1946, in the early days of the Attlee Government, that was thought of as a check on legislation. It has been used about seven times in the history of statutory instruments. Consequently, it is no longer an effective check. Regret Motions are useless. Many people do not bother to vote or come to listen to proceedings where regret Motions are involved.
I am not attacking the primacy of the Commons. I am saying, “Think again”, and that if the Commons says, “Get lost”, well, that is it. Similarly, if a Minister is presented on the other hand with reasoned concerns from this House, such as that there has been no consultation and no impact assessment, and has the same message from the House of Commons, he may very well think that he should withdraw the instrument which has been put forward and not pursue it in that form.
We are a long way from Henry VIII, but he increasingly holds sway. I refer to the new Bill concerned with standards that is going through. It is a bad Bill. What does it mean? It brings about bad government. The Government have been going for two or three months and they are producing—I say this with the greatest respect—bad law. It is the absolute epitome of a Bill which hangs secondary legislative powers from its branches. No doubt it will proceed in due course through all stages in this House, but the Government should expect to hear disappointment from those of us who hoped there would be a change from the addictions of the past—addictions to which the noble and learned Lord, Lord Thomas of Cwmgiedd, referred.
The noble and learned Lord pressed the point that primary legislation is required to deal with this problem. The Hansard Society said, in relation to this Bill, that it would prefer the introduction of a conditional amendment procedure to be through an amendment to Standing Orders—great. The reason that I am looking for primary legislation is that, as the joint reports of the committees to which I referred earlier stated, the issue is not the primacy of the Commons but the balance between Parliament and the Executive Government—the elective dictatorship to which my noble friend Lord Wallace of Saltaire referred. An editorial in today’s Guardian, “Modernising Parliament: Time for Creative Changes”, suggested that:
“Parliament can sometimes come across as an alien irrelevance, in which politicians spout platitudes offering little hope to stressed lives.”
The 2015 debate regarding tax credits for 3 million people is an excellent example, where the Government paid no heed at all to the decision of this House that they should think again, despite the fact that they were dealing with so many millions of people and so much money. I have no confidence at all that any Government would be motivated to modify Standing Orders in favour of Parliament. Parliament must fight its own corner, by the use of its legislative powers, and this Bill is where it starts.