Strengthened Statutory Procedures for the Scrutiny of Delegated Legislation: DPRRC Report

Lord Butler of Brockwell Excerpts

Tuesday 5th March 2013 Lords Chamber

[Lord Butler of Brockwell]

My Lords, I endorse the tributes which have been paid to the committee’s staff, advisers and chairman. They are well deserved.

It is indeed gratifying that the Government have accepted the majority of the committee’s recommendations. However, as has been pointed out, they have not responded to the committee’s recommendation made last July that they should clarify whether they will confirm undertakings that, in respect of draft legislative reform orders under the Legislative and Regulatory Reform Act 2006, they will not use those procedures for highly controversial changes and will not pursue such orders in the face of opposition from scrutiny committees in either House. Nor have they confirmed whether they will give similar undertakings in respect of draft orders under Section 5 of the Fire and Rescue Services Act and Sections 7 and 11 of the Localism Act 2011. It really cannot have taken since last July for the Government to decide whether they are willing to give such undertakings. I hope that tonight the Minister will give the Government’s response to those recommendations.

As the noble Lord, Lord Haskel, said, these procedures may seem technical, even arid, but they are important for this House’s role in scrutinising the Government’s legislation—a role for which the House has a deservedly high reputation. So much of the detail of the Executive’s lawmaking is done these days through delegated legislation that it is important that the House scrutinises that delegated legislation as effectively as we do primary legislation. In that context, I support the proposal of the noble Baroness, Lady Thomas of Winchester, that the House should consider rationalising the committee structure for the consideration of statutory instruments and should seek to work more closely with the other place through Joint Committees. Unlike primary legislation, which the two Houses consider sequentially, we frequently consider many statutory instruments simultaneously. In those circumstances, it would make more sense for the Houses to work together more closely through Joint Committees.

The noble Baroness, Lady Thomas, supported by others, suggested that in the case of controversial orders this House should be given two bites of the cherry—specifically, that there should be a debate some time in advance of the occasion of the House having to decide on an order so that the Government can take account of views expressed before bringing the order for the House’s decision.

I refer to the recommendations which the noble Baroness, Lady Thomas, described as more confrontational —that is, those made in respect of the scrutiny of delegated legislation by the Goodlad committee, on which I served. That committee pointed out that, despite a 1994 resolution by your Lordships’ House that it has,

“unfettered freedom to vote on any subordinate legislation”,

it has used its power to vote down secondary legislation very rarely indeed. This produces a strange unevenness between the House’s scrutiny of primary legislation and that of secondary legislation. The House does not hesitate to vote on, and often defeat, the Government on primary legislation, thus giving the Government the opportunity to think again. Why are we so reluctant to vote on secondary legislation?

The noble Lord, Lord Roper, whom I see in his place, pointed out to me that there is a difference between primary and secondary legislation. With primary legislation the Government can always resort to the Parliament Acts; however, that is of course the nuclear option. What normally happens is that when the Government are defeated in this House on legislation, they consider the matter further and either accept this House’s view or reverse it in another place. Similarly, if the Government were defeated in this House on secondary legislation, it is not beyond the wit of the Executive to bring back legislation if, having considered the matter, they wish to follow the same course in a form similar to that which they presented before.

I therefore hope that the Government and the House will give serious consideration to the Goodlad committee’s proposal for an alternative way of achieving the objective of getting the Government to think again. The proposal was that the House should pass a resolution reaffirming its freedom to vote down delegated legislation but assert that, when it does so, its purpose is to give the Government the chance to think again and that if the Government relaid a substantially similar instrument, and the Commons passed it, the Lords would not vote against it for a second time. That would be an alternative way of achieving the objective that the noble Baroness, Lady Thomas, has described—namely, giving the Government an opportunity to take account of the House’s views before passing secondary legislation. That would be in line with the House’s procedures on primary legislation.

This is one—just one—of the recommendations of the Goodlad committee on which the Government have so far remained studiedly silent. I know that if the noble Lord, Lord Goodlad, had been able to stay and take part in this debate, he would have asked the Minister when we could expect the Government to give some response to that recommendation. I hope that he will be able to provide some indication in his reply.