Statutory Instruments (Amendment) Bill [HL]

Baroness Anderson of Stoke-on-Trent Excerpts

Friday 18th October 2024 Lords Chamber

[Baroness Anderson of Stoke-on-Trent (Lab)]

My Lords, I thank the noble Lord, Lord Thomas of Gresford, for raising the important issue of how we legislate and how we should legislate. It is the constitutional duty of this House to ensure that legislation that the Government bring forward is of the highest standard. I know that this duty is taken seriously by all Members of your Lordships’ House. The Government consider Parliament’s role in the legislative process to be of the utmost importance and hold the contribution of this House in the highest regard, taking seriously the comments and concerns raised by noble Lords, especially today. Your Lordships’ House’s ability to scrutinise is second to none, even if that does make it slightly terrifying for a new Minister.

I acknowledge the work over recent years of the Delegated Powers and Regulatory Reform Committee, the Joint Committee on Statutory Instruments, the Secondary Legislation Scrutiny Committee and the Constitution Committee. Their tireless work to support and scrutinise the creation and use of delegated powers, and the legislative process more broadly, helps to shape policy and uphold the high standards that Parliament and the public expect. Their diligent scrutiny and focus are an example of your Lordships’ House at its best.

I turn to the substance of the Bill. The issue of statutory instruments and, more broadly, the nature and scope of powers conferred to the Executive is not new. There has always been a need to strike a balance between providing the Government with the flexibility they need to deliver for the country and ensuring that the legislature can retain proper control over changes to the law. This debate is as old as Parliament and has been a running sore—perhaps most notably with the powers conferred by the Proclamation by the Crown Act 1539, which granted King Henry VIII sweeping powers to legislate by decree, without any semblance of parliamentary oversight as we would recognise it today. We can be thankful that the Act was repealed shortly after his death. That being said, the interesting debate today is evidence of the persistent and lively nature of the subject of delegated powers and the importance that Parliament gives to the legislative process.

Procedures for delegated powers have come a long way since Henry VIII—although it does not always feel like it—but that is not to say that the situation is perfect. This Government are clear that, too often, Parliament has been asked to approve overly broad and insufficiently constrained powers, and not been given the information it needs to fully scrutinise legislation. That is why this Government have pledged to do better—to respect Parliament’s role and to enable proper legislative scrutiny. To that end, I have a great deal of sympathy with the proposals before us. However, I do not believe that they are the right way to address the problems we see.

It is important to remember that Parliament already has the opportunity to scrutinise the nature and scope of powers during the passage of enabling primary legislation, as well as the content of statutory instruments when they are laid before Parliament. Parliament routinely requires that statutory instruments are subject to parliamentary scrutiny through either the negative or affirmative procedures. Under either procedure, once an instrument is laid before Parliament, Members of both Houses may scrutinise and debate its purpose and form, and even move to prevent it becoming or remaining law. Scrutiny of statutory instruments and delegated powers begins before a Bill even reaches Parliament. A high bar has been set to ensure that any delegated powers are justified. The Government have been clear that any delegated powers must possess a robust rationale, must be legally sound, and should not be taken in lieu of underdeveloped policy.

Indeed, my noble and learned friend the Attorney-General spoke passionately about the rule of law in his maiden speech, when he promised to guard against the abuse of the proper role of secondary legislation. The noble Lord, Lord Thomas of Gresford, quoted the Attorney-General’s 2024 Bingham Lecture, titled “The Rule of Law in an Age of Populism”—I think he will be delighted at how many noble Lords have followed his speech on Monday. My noble and learned friend spoke about the proper balance between Parliament and the Executive, saying that:

“Secondary legislation has an indispensable role to play in a modern, regulated society”,


but that there is a need for a

“sharper focus on whether taking delegated powers is justified in a given case, and more careful consideration of appropriate safeguards”.

I strongly believe that this is the right approach. This emphasis on adherence to good legislative practice ensures that primary legislation is specific and measured in the powers it grants, and that Parliament has ample opportunity to scrutinise any provisions for statutory instruments.

However, as the noble Baroness, Lady Neville-Rolfe, highlighted, the Government have specific concerns with the procedural processes set out in the Bill. They would require that a greater proportion of parliamentary time is spent on secondary legislation. Most draft SIs would be subject to the affirmative procedure, under which both Houses must debate and approve instruments before they become law. Subjecting these instruments to the possibility of further debate would, in effect, create yet another forum for relitigating debates that took place during the passage of the primary legislation.

Furthermore, the proposed procedure is asymmetric between the Houses. It would allow the other place to require the Government to withdraw and reconsider an instrument only on the initiative of this House. This would sit in tension with the fundamental principle of the primacy of the elected Chamber, and it is not for this House to tell the other how to operate. I think we can acknowledge that we would not welcome such an approach either from the other place, if they tried it. As such, the Bill in question would represent a significant step and fundamentally alter the way that government business is arranged, particularly in the Commons.

It is often statutory instruments on which the Government rely to respond to dynamic and emerging national and international issues; this is not something we would wish to restrict. I am sure we can all understand the negative effect that the Bill would have on this process, introducing the possibility of multiple, potentially drawn-out debates and votes on statutory instruments that would truly hinder the Government’s ability to respond to ever-changing national and international opportunities and challenges and take up precious parliamentary time. It is the opinion of the Government that our efforts should instead be directed at ensuring that we get the regulations right in the first place—that is to say, that they are drafted to the highest standard and Parliament is provided with the necessary information to hold the Government to account.

We are working hard to achieve this. The Explanatory Memorandum template has been revised to ensure that they are clear and meet the needs of Parliament and the public. We will review the template and guidance, which was published for the first time earlier this year, in the new year to ensure that it remains fit for purpose. We are also developing and delivering a range of training initiatives, including e-learning focusing on the project management aspect of secondary legislation, which will be available to all civil servants. This is complemented by a biannual programme of high-level seminars covering the delivery of secondary legislation, alongside an ongoing programme of workshops on the fundamentals of secondary legislation and how to draft effective Explanatory Memoranda. The team that develops these resources works closely with the SLSC secretariat. Ministerial training is now being delivered on a regular basis to ensure that Ministers have a clear understanding of the key issues, and understand the process around statutory instruments and broader delegated powers.

The noble and learned Lord, Lord Thomas of Cwmgiedd, asked about impact assessments. We agree that legislation should arrive in Parliament with all the necessary supporting documents to ensure that we in this place and those in the other place are best positioned to conduct appropriate scrutiny. We will do everything that we can to ensure that all impacts assessments are delivered when required.

Before I conclude, I thank the noble Lord, Lord Hunt of Wirral, for his contribution. I know that he has spoken in this debate in a personal capacity. However, I am grateful for all his work as chair of the Secondary Legislation Scrutiny Committee, and that of his committee—especially when I was in opposition and used much of it in debates on SIs in the Moses Room, and especially recommendations that it has made about the importance of seeing improvements to the Government’s approach to secondary legislation. I hope that he will be reassured by my response to the debate. I assure him that the Government have heard his arguments today, and as chair of his committee, and we look forward to continuing to work with him.

As the now shadow Leader so succinctly put it, in a previous debate before the House:

“It is the Government’s constitutional role, and indeed their right, to put before your Lordships … legislation they judge to be expedient to deliver on their manifesto commitments and to address the issues of the day. It is Parliament’s role to ensure that this legislation is effective, necessary and balanced”.—[Official Report, 6/1/2022; col. 793.]


Statutory instruments are often the appropriate device for such events. The Government have confidence that the existing processes are robust and fit for purpose. They necessarily provide the Government with the means to respond effectively to developing circumstances while upholding the constitutional duty of Parliament to scrutinise the laws that this Government bring forward. However, it is important to recognise that there will be times when the Government will not get this right. This process is not static.

This debate has been welcomed and heard by the Government, but I remind your Lordships that we are 106 days in. It may take us some time to get this right. If this debate has shown one thing, it is the noble intent of Members of this House to uphold the highest standards of scrutiny and legislative procedure. I commend everyone for that.