Statutory Instruments (Amendment) Bill [HL]

Baroness Finn Excerpts

Friday 14th March 2025 Lords Chamber

Moved by

[Baroness Finn]

1: Clause 1, page 1, line 5, after “withheld” insert “for forty days”
Member’s explanatory statement
This amendment and another in the name of Baroness Finn would ensure that a Statutory Instrument which is challenged by the House of Lords under section 1 can only be withheld for a maximum of forty days, after which it shall be approved.

[Baroness Finn (Con)]

My Lords, in moving this amendment, I start by setting out the Official Opposition’s broad approach to the Bill. We wholeheartedly support the noble Lord, Lord Thomas of Gresford, in his desire to improve scrutiny of secondary legislation. We agree that a “think again” power might be a useful additional tool for Parliament when considering secondary legislation.

Approximately 3,500 statutory instruments are made each year, with Parliament considering around 1,000 of them. Governments are increasingly using statutory instruments to carry on their business, and it is only right that Parliament has the appropriate tools to scrutinise secondary legislation. Indeed, Conservative Ministers have previously sought to introduce a similar power, on which my noble friend Lord Strathclyde did some excellent work. We support the improved scrutiny of secondary legislation and have tabled a number of constructive amendments to probe the noble Lord’s intentions and understand how the Bill would work in practice

On my Amendments 1 and 2, the Bill as drafted would require a Minister of the Crown to table a Motion in the other place when your Lordships’ House passes a Motion to withhold approval of a statutory instrument on the grounds that the Minister should consider amending it. Our amendments would limit the length of time the House of Lords could withhold approval of a statutory instrument to a maximum of 40 days.

Were your Lordships’ House to prove overzealous in the use of the new “think again” power, this could run the risk of clogging up the Order Paper in the other place, hindering that House’s ability to effectively manage its own business. I understand the concern of the noble Lord, Lord Thomas, that regret Motions in your Lordships’ House have no legal effect and are thought by some to be a waste of time, but with this amendment we are testing whether it is appropriate for your Lordships’ House to have the ability to trigger large numbers of debatable Motions in another place. We seek to understand more fully what the implications of that new power might be.

Instead of leaving the possibility of an unacceptable number of “think again” Motions being moved in another place, our amendment would mean that a Government who do not wish to heed the recommendation to think again would not have to table a separate Motion to reject those concerns. Admittedly, this leaves the discretion not to amend the statutory instrument with the Minister alone, rather than the other place, but the other place has its own powers to approve or reject secondary legislation as it sees fit.

If the Bill becomes law in its present form, we should seek to ensure that your Lordships’ House uses these powers very sparingly. It would be an unacceptable state of affairs if your Lordships’ House could withhold a large number of statutory instruments, forcing the Government to move a time-consuming number of Motions in the other place.

I will now speak my Amendment 3. In its current form, this part of the Bill seems to imply that your Lordships’ House could choose not to consider a re-laid statutory instrument if it did not wish to do so. Our amendment seeks to clarify the drafting to ensure that all statutory instruments that have been considered, challenged and re-laid are considered formally again before being approved.

We are particularly concerned that, should a circumstance arise where your Lordships’ House could choose not to consider formally an amended and re-laid statutory instrument, the decision to use the new “think again” power would have an impact on parliamentary time in another place but not in your Lordships’ House. This clarification would retain a light check on the House using this power too frequently, or even as a standard response to statutory instruments where minor disagreement arises. Noble Lords would know that any decision to use the powers in Clause 1 would have a direct impact on parliamentary time in your Lordships’ House. I beg to move.

[Lord Hunt of Wirral (Con)]

My Lords, the noble Lord, Lord Thomas of Gresford, will know that, as I explained when I spoke at Second Reading, as the immediate past chair of the Secondary Legislation Scrutiny Committee, I am very concerned indeed by the way statutory instruments are dealt with, whichever Government are in power. We have on many occasions put forward suggestions as to how this could be settled in a satisfactory manner.

At the moment, we have statutory instruments which are badly drafted. There is no mechanism whereby, once laid, they could be amended. On one occasion, the last time the Labour Party was in power, I persuaded a Minister to withdraw an instrument and lay it again. That should not be necessary. There should be some mechanism whereby statutory instruments can be amended.

There are a number of other criticisms. Perhaps the most important is that Explanatory Memoranda should actually explain. Many is the occasion when the Explanatory Memorandum seems to try to explain the inexplicable by repeating the wording of the statutory instrument, as if that was an explanation. Then we have statutory instruments without proper impact assessments. So I warmly welcome the way the noble Lord is approaching this subject.

I say to my noble friend Lady Finn that her route, of tabling amendments to make the Bill more acceptable by putting us on the same basis as the House of Commons so that both Houses have powers to improve the quality of secondary legislation, can only be a step in the right direction. I anticipate that the Minister may find ways to make it no longer possible to support the Bill, which I would greatly regret. Therefore, it is very much up to us all to amend the Bill so that it becomes more acceptable, whichever Government are in power, so I warmly support my noble friend.

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[Baroness in Waiting/Government Whip (Baroness Twycross) (Lab)]

My Lords, I thank noble Lords for their contributions today and the noble Lord, Lord Thomas of Gresford, for his continued work championing the important issue of secondary legislation.

As we all know, this House plays a vital role in ensuring that all legislation brought forward by this Government is of the highest standard. I am grateful for the role played by committees of this House, including the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee, in ensuring that statutory instruments are subject to appropriate scrutiny. Our current procedures and processes for statutory instruments allow for both Houses to scrutinise and debate instruments.

Turning to the first group of amendments, which address the scrutiny of instruments in this place, I believe that these amendments are well intended, and I recognise that they represent a check on the power of this place and assert its right to scrutinise instruments laid before it. However, the Government’s view remains that we should continue to get this right in the first instance. That is why, as my noble friend Lady Anderson set out at Second Reading, we must focus our efforts on ensuring that statutory instruments are delivered to the highest quality in the first place.

That is not to say that the situation is perfect. This Government are aware that Parliament has not always been given the information it needs to fully scrutinise legislation, and the Secondary Legislation Scrutiny Committee has sometimes asked for further detail. This has on occasion led to some Explanatory Memoranda being replaced to include that information. But I remind the House, and, I hope, reassure the noble Lord, Lord Hunt of Wirral, and the noble and learned Lord, Lord Thomas of Cwmgiedd, that this Government have pledged, and intend, to do better. This does not mean, however, that we need to revise the procedures for the consideration of statutory instruments.

In a similar vein, while I thank the noble Baroness, Lady Finn, for her amendment which seeks to ensure that this House does not have greater powers to amend statutory instruments than the other place, I maintain that the Government’s position is that the legislation before us is not the way to remedy our processes regarding such instruments. I am, none the less, grateful to her for drawing attention to the importance of maintaining a balance between the powers of our Houses.

Additional training, resources and guidance have been and continue to be developed and revised as appropriate to support our ongoing efforts to do better. This includes training and resources for Ministers and civil servants, and last month the Guide to Making Legislation was updated. This update includes a new delegated powers toolkit which has been produced by my noble and learned friend the Attorney-General and which will support departments to decide whether to include a delegated power in a Bill. Our hope is that this will support the subsequent development of quality instruments and supporting documentation.

The final group concerns the technical correction of statutory instruments. It would be remiss of me at this point not to draw the Committee’s attention to the excellent work carried out by the National Archives, which oversees the so-called correction slip process. This is a well-established process through which the Government can already make minor, non-substantive corrections to defective statutory instruments after their publication. The National Archives does an excellent job in assessing whether a corrections slip is appropriate on a case-by-case basis and, where applicable, issues the slip to the Vote Office in the Commons and the Printed Paper Office in the Lords.

[Baroness Finn (Con)]

I think the Minister may be talking to the next group of amendments.

[Baroness Twycross (Lab)]

My apologies.

[Baroness Finn (Con)]

My Lords, I thank the noble Lord, Lord Thomas of Gresford, for his response to my amendments, and I am grateful to my noble friend Lord Hunt of Wirral and the noble and learned Lord, Lord Thomas of Cwmgiedd, for their contributions. Having been a member of the Secondary Legislation Scrutiny Committee when I first joined your Lordships’ House—I think it was during the first two or three years of the Brexit legislation—I have full sympathy with the points made on Explanatory Memoranda and lack of impact assessments, so I fully support all that my noble friend said on that.

The noble Lord, Lord Thomas of Gresford, made the point that he disagrees with my Amendments 1 and 2 about only the Minister having the power to lay the statutory instruments before the other place and the time limit. I understand his arguments. On Amendment 3, if we do not want to leave any doubt on “may” or “must”, it is probably simpler to leave it as “must” rather than “may”.

However, I entirely sympathise with the reasons of the noble Lord, Lord Thomas of Gresford, for drafting the Bill. Presently, your Lordships have a binary choice of whether to reject an SI or approve it. There is no procedural mechanism for the Government or Members in another place to consider your Lordships’ reasons for refusal. The Bill would allow any challenge from your Lordships’ House to be considered in another place, and I am pleased that there is within the Bill the clear power for the elected House to reject the proposed changes recommended by noble Lords. This, as the noble Lord argued at Second Reading, preserves the primacy of the elected House over the revising and scrutinising Chamber.

That said, as we will debate in the next group, it is not clear why the power to initiate the “think again” process is vested solely in your Lordships’ House under this Bill. I am pleased to have been able to put our concerns on the record, but, as I said at the beginning of our debate, we support the intentions of the noble Lord, Lord Thomas of Gresford, in bringing forward the Bill. We hope that our constructive amendments have provoked a useful debate on the appropriate powers that this House should have to amend secondary legislation. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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Moved by

[Baroness Finn]

4: Clause 1, page 1, line 25, at end insert—
“(6) Where for the purposes of subsection (1) the House in which the instrument is considered is the House of Commons, the rest of this section will apply with “the House of Commons” in place of “the House of Lords”.”Member’s explanatory statement
This is a probing amendment that would ensure the House of Lords does not have greater powers to amend statutory instruments than the House of Commons.

[Baroness Finn (Con)]

My Lords, Amendment 4 seeks to grant another place the same power to initiate the “think again” procedure under Clause 1. In the other place, secondary legislation is considered differently than in your Lordships’ House. When an affirmative statutory instrument is tabled there, it is automatically referred to a Delegated Legislation Committee. These committees have 16 to 18 members, and any member can attend and speak, but only members of the committee can vote. A Delegated Legislation Committee considers an SI but does not have the power to stop it. In some rare cases, the statutory instrument is not referred to a committee but is debated on the Floor of the House if it is of particular interest. Once the statutory instrument has been debated by a committee, it needs final approval by another place before being made and becoming law.

As noble Lords will see, the other place suffers from precisely the same handicap as your Lordships’ House when considering secondary legislation. It has the binary choice to approve or not to approve. That is the question.

I tabled this amendment to probe the willingness of the noble Lord, Lord Thomas of Gresford, to grant an equal power to the other place to initiate the “think again” procedure. We are open to discussions on the precise drafting of this amendment, but it is the principle we are seeking to probe. Why should your Lordships’ House have the power to trigger a process by which Ministers are asked to think again when another place does not have that power? I accept that the Bill grants another place the ultimate say on whether Ministers are forced to amend their instrument, thus preserving the primacy of the elected House, but we do not understand why it is only your Lordships’ House that can initiate a process that asks the Government to reconsider.

[Baroness Twycross (Lab)]

I am not going to go over all the points I already made in anticipation of the noble Baroness’s introduction of group 2. As I made clear, additional training, resources and guidance have been, and continue to be, developed and revised as appropriate to support our genuine, ongoing effort to do better. We hope that this will support the subsequent development of good-quality instruments and supporting documentation.

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[Lord Thomas of Gresford (LD)]

My Lords, my objection to this amendment is that it simply does not make sense. We cannot, in the machinery that is set out in my Bill, conceivably exchange the position of the House of Lords for the House of Commons. I am not proposing legislating for the House of Commons but for the House of Lords, in the fulfilment of its function as a revising Chamber. If you change the words round—to read “House of Commons” instead of “House of Lords”—we would be asking the House of Commons to advise itself that it has made a mistake. I do not think that that can be done. The amendment put forward by the noble Baroness, I regret to say, does not make sense in the way that it is framed.

The machinery I have proposed allows the House of Lords to consider an instrument that is put before it and whether it has any concerns. If it has concerns, it does not form them into an amendment to the instrument; it simply conveys those concerns to the House of Commons for it to consider. Clause 1(2) offers two possible courses of action for the House of Commons: it can reject the concerns expressed altogether, and that is the end of that; alternatively, it can request the Minister to make amendments to the draft instrument. It is the House of Commons that makes the suggestion, to the Minister, of an amendment.

You cannot reverse that and suggest that there should be some machinery in the House of Commons to ask the House of Lords to make suggestions of amendments and to frame amendments for a Minister to make. It just does not make sense. Accordingly, since this particular amendment is a complete muddle, and with the greatest respect for the noble Baroness, I ask her to withdraw it.

[Baroness Finn (Con)]

My Lords, I am grateful to the noble Lord, Lord Thomas of Gresford, for engaging with me on this amendment yesterday. I understand why, as he explained then, he thinks that it does not make sense.

We tabled this amendment to highlight the fact that the other place, just like your Lordships’ House, has no power to amend statutory instruments. If your Lordships’ House should have the power to initiate a “think again” process, with the consent of the other place, and to send Ministers back to look at their instrument again, we do not understand why the reverse should not be true—that the other place has the chance to look at it, not just that the Minister bring it.

It could be argued that when the other place disagrees with an instrument as the elected House, it should decline to approve it, yet we know that that has not happened since July 1978. It has been your Lordships’ House that has been more forceful in these matters, having rejected four statutory instruments by fatal Motion since 1997. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

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[Baroness Finn (Con)]

My Lords, this Bill seeks to give Ministers the power to change the text of statutory instruments after they have been approved by Parliament. The Hansard Society discussed the problems posed by incorrect drafting in statutory instruments at length in its 2023 report, Proposals for a New System for Delegated Legislation. In that report, the society confirmed that mundane technical errors might be addressed with a correction slip, but once a statutory instrument is made into law, any significant corrections that need to be made to it require that it be revoked, amended or replaced via a new instrument, thus duplicating many elements of the workload of departmental civil servants, National Archives staff and parliamentary officials, as well as Members. So once a statutory instrument is made, there can be no corrections, no matter how minor or technical, to the text of the secondary legislation.

We appreciate that Clause 2 seeks to put the current post-approval correction process on a statutory footing, but before putting this process into law, we must ask ourselves whether it is good practice in the first place. I accept that successive Governments bear responsibility for this, but Ministers should not introduce statutory instruments that need correction. They should get the drafting right before they are considered by Parliament. This is why we are concerned about putting this process, which seeks to resolve the results of bad practice, into law. The Hansard Society has put forward a proposal that all statutory instruments should be laid before Parliament in draft, other than in exceptional circumstances. This seems a far more sensible way forward. Surely, ironing out errors prior to the approval of a statutory instrument is superior to granting Ministers a statutory power to make those changes after approval. This process invites another concern about how the House is able to undertake sufficient scrutiny of ministerial use of this power to make technical amendments to ensure that the power is not improperly exercised.

Perhaps the newly created power in Clause 1 might be sufficient to give your Lordships’ House the opportunity to highlight errors in statutory instruments and recommend their correction by Ministers. As a general point, and I accept that successive Governments bear responsibility for this, Ministers should not introduce statutory instruments that need correction. They should get the drafting right before they are laid before Parliament.

[Lord Hunt of Wirral (Con)]

My Lords, I suppose we are at a crossroads here: are we or are we not going to have legislation to improve statutory instruments and the procedure that is adopted? As I predicted at Second Reading and as we heard earlier from the Minister, there is no general enthusiasm for the Bill, which I regret.

As the noble and learned Lord, Lord Thomas, reminded us, with the Product Regulation and Metrology Bill we had a direct confrontation between the Government on one hand and Parliament on the other. Our Delegated Powers and Regulatory Reform Committee made a very clear recommendation that all statutory instruments in the context of that Bill should follow the affirmative resolution procedure. Indeed, the Minister, the noble Lord, Lord Leong, had a special session with the Delegated Powers and Regulatory Reform Committee, as a result of which the committee said that it was not minded to withdraw its recommendation that all statutory instruments should follow the affirmative procedure. I moved an amendment to observe and support our Select Committee, but it was voted down. I sense that even when a committee as powerful as the Delegated Powers and Regulatory Reform Committee has such a strong recommendation, even when it listens to the Minister and still maintains its position, there is no procedure whereby Parliament can hold the Executive to account through the affirmative resolution procedure.

I am filled with scepticism as to whether this is going to make progress. I can well understand my noble friend moving that Clause 2 no longer stand part, because, in a way, we are searching for a way to make this Bill acceptable, so that it can go to the other place and we can put it on the statute book as soon as possible. As the noble Lord knows, I strongly support Clause 1, but I have a nasty feeling that, despite his noble intentions, which I strongly support, we are slowly entering a cul-de-sac. Perhaps the Minister can lay aside all my worries and concerns by suddenly rising to say that she and her colleagues have changed their minds and we are going to have a far better procedure, as set out in this Bill, in which case I will be very pleased indeed.

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[Baroness Finn (Con)]

My Lords, I thank the noble Lord, Lord Thomas of Gresford, for his response and for the time that he has taken. I totally understand his frustration with current practice. I thank my noble friend Lord Hunt of Wirral and the noble and learned Lord, Lord Thomas of Cwmgiedd, for highlighting the problems with secondary legislation and holding the Executive to account.

We know that corrections in secondary legislation are a time-consuming problem. In the 2021-22 Session, the Secondary Legislation Scrutiny Committee found that 9.6% of all statutory instruments had to be replaced by a correcting instrument due to errors in the original approved instrument. Clearly, this should be resolved, but we are not convinced that the 40-day period in which Ministers can make corrections will be the silver bullet that we seek. We recognise the problem and hope to consider other possible ways to resolve this ongoing issue before we can accept this new statutory power. I beg leave to withdraw.

Clause 2 agreed.