Statutory Instruments (Amendment) Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

Friday 14th March 2025 Lords Chamber

[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.

[Lord Thomas of Gresford (LD)]

My Lords, I am most grateful to both the noble Lord, Lord Hunt, and the noble and learned Lord, Lord Thomas of Cwmgiedd, for their support. They have really said everything that I could say about the simple provision that is being put forward. I just say that the amendments are really misconceived. If the second amendment, to put “may” for “must” in subsection (2), were passed, it would mean that the Minister would have discretion not to bring the matter before the House of Commons at all, and that would be the end of it: after 40 days, nothing happens and the provision goes through unamended, with all its faults.

--- Later in debate ---

[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.

[Baroness Twycross (Lab)]

My Lords, I have already covered some of my points in this final group. This Government support the current correction slips process. While it should never be needed, it is helpful where minor and technical corrections are required; it is a well-established process and it is used rarely and infrequently. Correction slips, as I started to say previously, are published on legislation.gov.uk, which ensures the transparency of these technical corrections. It is obviously desirable that corrections are never needed, but in our view, we need to be pragmatic in this respect. We should therefore acknowledge that this is a part of a system that works very well, with only 69 correction slips being used in the previous Session of Parliament to make non-substantive amendments to instruments containing minor typographical errors.

Appreciating the concerns raised by the noble and learned Lord, Lord Thomas of Cwmgiedd, and in response to the noble Lord, Lord Hunt of Wirral, I again give reassurance that this Government genuinely remain committed to improving the delivery of statutory instruments. Noble Lords will be able to judge us on our success over the course of this Parliament. I thank noble Lords for the opportunity to have this debate and for the time given to discuss what we agree is a very important issue.