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

Lord Marks of Henley-on-Thames Excerpts

Tuesday 5th March 2013 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I join my noble and learned friend Lord Mayhew and the noble Baroness, Lady Andrews in paying tribute to the chairmanship of the Delegated Powers and Regulatory Reform Committee of my noble friend Lady Thomas of Winchester. She consistently chairs meetings of our committee with a combination of efficiency, understanding and charm that enables even the driest of our debates to be enjoyable and interesting and, generally, to lead to conclusions in which we all have confidence.

As has been said, the committee performs a valuable function and performs it well, but there is considerable force in the central thrust of our special report. That is that the burgeoning range of arrangements for parliamentary scrutiny tends to deprive Members of this House of the ability quickly and simply to assess whether Ministers’ exercise of delegated powers will be adequately or appropriately supervised and controlled.

It is, of course, gratifying that, in general, the recommendations of the committee are accepted by Ministers, so that the work of the committee is, to that extent, effective. However, there are occasions when the committee rightly feels that the level of scrutiny should be a matter to be considered by the whole House. This is particularly true when strengthened scrutiny procedures are being considered. On such occasions, it would be helpful for Members of this House if the possibilities were generally limited to a few well understood procedures. That recommendation is at the heart of our report. The Government have promised to move in that direction, and this House should be astute to monitor how serious and disciplined the approach of the Government is in future.

I shall follow up the suggestion that my noble friend Lady Thomas made towards the end of her speech, which was supported by the noble Baroness, Lady Andrews, that there should be a better, more effective and more detailed specific way of scrutinising delegated legislation that is subject to the affirmative resolution procedure. The regret Motion, which is a familiar procedure in this House, is a blunt instrument indeed. Fatal Motions are even blunter and the House is understandably reluctant to entertain or to resort to them. If passed, a regret Motion gives the Government an opportunity to think again, but it does not compel them to do so. As a procedure, the regret Motion has two important flaws: first, it is entirely non-specific and while it is common that the Motion sets out in general terms the basis for criticism, it does not enable the House to consider and express a view on particular flaws in the instrument proposed nor does it give the House the opportunity to suggest alternatives or amendments that might make for better or more effective secondary legislation. Secondly, the regret Motion is generally ineffective in practice, even if it is successful. Generally, it is an instrument not of constructive scrutiny, which is the proper role of this House, but of outright opposition, which may be out of place, particularly given that, ex hypothesi, the enabling legislation has already passed through both Houses.

The two-stage process suggested by my noble friend would answer those criticisms. I fully appreciate and agree with her that delegated legislation is of its nature a matter for Ministers, subject to the appropriate level of parliamentary scrutiny. It is therefore not appropriate for us to introduce a fully fledged procedure for amending delegated legislation. That would be contrary to principle and the whole point of such legislation. However, I suggest that there might be many ways of achieving the objective of enabling the House to have a more directed and specific way of looking at draft instruments. My noble friend’s suggestion is certainly one which offers that prospect. On the first occasion that a draft instrument came before the House, the House would be in a position to suggest amendments that might improve it and to invite the Government to consider them. The Government would then have the opportunity to do so, knowing that if the will of the House were ignored, they would run the risk of being defeated when the draft was brought back to the House unamended. If, on the other hand, the Government wished to amend the draft, they could do so and bring the amended draft back to the House for approval.

I am not suggesting that this procedure would or should be invoked in every case, but it would be sensible for it to be considered and tested. I suspect that its introduction would probably not require any formal change of procedure. The House, the usual channels and the Government could then determine when such a procedure should be used and monitor whether such a new procedure added to the effectiveness of the House in scrutinising secondary legislation. I suggest that it almost certainly would.