House of Lords: Procedures and Practices

Baroness Thomas of Winchester Excerpts

Thursday 4th December 2014 Lords Chamber

[Baroness Thomas of Winchester (LD)]

And now for something completely different. I am very pleased to have the opportunity of this debate to fly a kite which I have flown at least three times before. It is my idea for debating statutory instruments. I thank the noble Lord, Lord Foulkes, for this chance. I have not flown the kite so far this year, so that is why it is going to have another outing.

My starting point is that affirmative statutory instruments, which are powers devolved by Parliament to Ministers, say that they are in draft, but that only means that they have not yet been through both Houses to be approved, so “draft” does not mean that they can be amended. One of the first things you learn about SIs is that they cannot be amended by either House, only agreed to or thrown out. We in this House are very loath to throw them out because our mindset is to try to seek consensus to make the law better, mostly where it resides in a Bill. However, sometimes an affirmative SI contains a good deal of meat which could not be foreseen in the parent Act, or circumstances have changed between the passing of an Act and the making of an instrument—years often pass—so, on occasion, a draft affirmative SI is laid before Parliament which is extremely controversial. Various Peers may table regret or even deplore Motions, with reasons, but that does not alter the fact that even if these Motions are passed, the SI is still passed with a mild slap on the wrist from the House.

How much better it would be to have a meaningful debate about the substance of the instrument in the Chamber, without the instrument itself being taken at that point. I envisage a carefully worded resolution to which amendments could be proposed and voted upon, but with their effect being advisory only. This would almost be another stage in the consultation process, which all Governments now take much more seriously than they did. The House would be the consultee, knowing that the arguments could be taken on board by the Government. The Government would know what the arguments against the instrument were. At that point, they might just decide to tough it out by taking the original instrument through the House, marshalling their arguments accordingly. Or they could withdraw the original instrument, even if it had been through the House of Commons, and retable another one to reflect points made in the earlier debate.

I know it will be said that I am being unrealistic and that no Government would agree to such a procedure willingly. However, if in the future more SIs are voted down, as quite a few Peers advocate, then any Government might feel that my halfway house approach is preferable. I do not think that this procedure would be used more than once or twice a Session, if that. The real question is how long Parliament will accept the “take it or leave it” procedure we have now.