Statutory Instruments (Amendment) Bill [HL]

Lord Hunt of Wirral Excerpts

Friday 14th March 2025 Lords Chamber

[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.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, in the light of what the noble Lord, Lord Hunt, has said, I do not wish to say anything about the urgent need for reform. Clarifying the use of the word “may” via Amendment 3 is sensible. You do not want to leave any dispute about it because “may” often means “must”, at least to a lawyer.

However, I have concerns about the effect of the other two amendments. First, given the speed at which statutory instruments proceed, giving the House power to delay for only 40 days might mean that a Minister will shrug his shoulders and say, “So what?” Secondly, it seems to me that if the procedure in subsection (2) is to be followed, then “a Minister must” is completely right, as is the use of “must” in line 16. The “must” in subsection (2) is right because you want to ensure that the Minister does something; it should not be at his discretion.

In discussions when the result of the last election was more speculative, one picked up the feeling in the House that some people would be happy to see the procedure changed so that there was proper scrutiny. But, as it currently stands, the statutory instrument procedure is the most wonderful tool for a Government, because it enables them to avoid lengthy—in my view, sometimes wholly unnecessarily lengthy—debates in the House. Unless we can make the statutory instrument procedure work more effectively in the manner suggested by this Bill, it seems to me that we are steadily eroding the power of this House to properly examine important legislation. One has only to look at something such as the Product Regulation and Metrology Bill. I completely understand why the Government wanted that to be a framework Bill, because the procedures of the House make it impossible to do it by primary legislation, but if we cannot change our procedure for primary legislation, we have to change the procedure for secondary legislation. Therefore, I support one of the amendments in this group, but not the other two.

--- Later in debate ---

[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.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I entirely agree, and that is why it is such a pleasure to follow the noble Lord, Lord Hunt. He is right in identifying the crossroads: either we deal with our primary legislative procedure and make it more effective and efficient—in that I have great sympathy with any Government who want to get on with things—or we find a procedure for dealing with important instruments that subjects them to scrutiny on the Floor of the House, where they can be amended. We are doing far too much in the way of important changes to the law by statutory instrument, rather than by work on the Floor of the House through a proper Bill. But, if you decide that you cannot do anything about the primary legislative procedure, you cannot leave the secondary legislative procedure alone. The hereditary Peers Bill is a very good example of why, if you do not take an opportunity to reform one thing, you end up with something much worse. I urge the Government to look very seriously at this Bill.

I cannot agree with the proposal that Clause 2 should not stand part of the Bill. There is quite an important issue at stake. It is impossible, in our present procedure, to get the legislation drafted perfectly when it has not been scrutinised by someone outside it. That is an impossibility. Lawyers will always find things wrong. Although the Minister says that her legislation is perfect, I am afraid I disagree: it is not. It is a little far-fetched to think that, because we have a new Government, the whole machinery of government that drafts all this wakes up in the morning completely transformed. That is not the case. Therefore, there is a need to correct.

What is important here, then, is making sure that we are doing this in the right way. Although I am a great believer in conventions, which is what governs the current position—and what is happening on the other side of the Atlantic shows the importance of convention to the operation of our constitution—if we are altering law, the mechanism for altering it, to accord with the rule of law, has to be under a statutory power; we cannot leave it to convention. Therefore, although some people may raise their eyebrows at this clause, I do not see how you can leave that to convention; you must make it a lawful power under legislation. So I regret to say that I cannot support the proposal of the noble Baroness to amend the Bill in this way.