House of Lords: Working Practices

Baroness Thomas of Winchester Excerpts

Thursday 1st November 2012 Lords Chamber

[Baroness Thomas of Winchester]

My Lords, my contribution to this very welcome debate concerns the debating of statutory instruments and, in particular, draft affirmative instruments. I have the honour to chair the Delegated Powers and Regulatory Reform Committee. Soon, I hope that time will be found to debate the committee’s special report on strengthened statutory procedures for the scrutiny of delegated powers. What I am about to say is not explicitly part of that report but is hinted at under the heading “New Opportunities”. I should make it clear that I am speaking entirely on my own behalf and not as chairman of that committee.

I start from the premise that the scrutiny and debating of statutory instruments by Parliament is extremely important and that the more often Governments of all persuasions use secondary legislation for major changes to the law, the more important is Parliament’s role. Yet there is general frustration about the House’s role because, as we all know, SIs cannot be amended so there is a take-it-or-leave-it mentality built into the whole debate. That frustration is manifest in the increasing number of Motions to regret, or even to deplore, which have been tabled in recent months.

I do not disagree with the Goodlad suggestion on voting, but my proposition would be less drastic. I start with the word “draft”. In the outside world, draft documents can be changed before being finalised. Yet in the world of SIs, “draft” before the words “affirmative instrument” means only that the instrument has to come before Parliament to be agreed before it comes into effect, unlike negative instruments. What I believe the House would welcome in the case, say, of a major change in government policy is that the first appearance of the SI would be a genuine draft—not set in stone at that preliminary stage. Perhaps it could be called a consultative draft. It would then be debated in the Chamber and Peers could table and vote on advisory amendments, or even vote it down altogether, knowing that they had voted against only a draft document. If the Government lost such a vote, they would know the strength of feeling in the House. The Minister might well decide to change the final version rather than risk it being lost.

I well understand that in some cases, and I think in many, the Government genuinely consult MPs and Peers as well as outside bodies about the detail of certain important and potentially contentious instruments, such as the one bringing in the PIP criteria in what became the Welfare Reform Act. This is extremely welcome but it is done behind closed doors. There is much important detail in this suggestion that there is no time in this debate to explore, such as the parliamentary timetable and the impact on procedures in the Commons. However, I suggest it as a forerunner to the debate that I hope we shall soon have on the report I mentioned about the enhanced scrutiny procedures of SIs, which are laid down in various Acts.