Statutory Instruments (Amendment) Bill [HL]

Baroness Twycross Excerpts

Friday 14th March 2025 Lords Chamber

So these amendments really do not do anything to clarify the Bill, and do not assist in preventing the theoretical gumming up of legislation in the House of Commons, as has been suggested as the only reason that these amendments have been tabled, and I ask the noble Baroness to withdraw Amendment 1.

[Baroness in Waiting/Government Whip (Baroness Twycross) (Lab)]

My Lords, I thank noble Lords for their contributions today and the noble Lord, Lord Thomas of Gresford, for his continued work championing the important issue of secondary legislation.

As we all know, this House plays a vital role in ensuring that all legislation brought forward by this Government is of the highest standard. I am grateful for the role played by committees of this House, including the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee, in ensuring that statutory instruments are subject to appropriate scrutiny. Our current procedures and processes for statutory instruments allow for both Houses to scrutinise and debate instruments.

Turning to the first group of amendments, which address the scrutiny of instruments in this place, I believe that these amendments are well intended, and I recognise that they represent a check on the power of this place and assert its right to scrutinise instruments laid before it. However, the Government’s view remains that we should continue to get this right in the first instance. That is why, as my noble friend Lady Anderson set out at Second Reading, we must focus our efforts on ensuring that statutory instruments are delivered to the highest quality in the first place.

That is not to say that the situation is perfect. This Government are aware that Parliament has not always been given the information it needs to fully scrutinise legislation, and the Secondary Legislation Scrutiny Committee has sometimes asked for further detail. This has on occasion led to some Explanatory Memoranda being replaced to include that information. But I remind the House, and, I hope, reassure the noble Lord, Lord Hunt of Wirral, and the noble and learned Lord, Lord Thomas of Cwmgiedd, that this Government have pledged, and intend, to do better. This does not mean, however, that we need to revise the procedures for the consideration of statutory instruments.

In a similar vein, while I thank the noble Baroness, Lady Finn, for her amendment which seeks to ensure that this House does not have greater powers to amend statutory instruments than the other place, I maintain that the Government’s position is that the legislation before us is not the way to remedy our processes regarding such instruments. I am, none the less, grateful to her for drawing attention to the importance of maintaining a balance between the powers of our Houses.

Additional training, resources and guidance have been and continue to be developed and revised as appropriate to support our ongoing efforts to do better. This includes training and resources for Ministers and civil servants, and last month the Guide to Making Legislation was updated. This update includes a new delegated powers toolkit which has been produced by my noble and learned friend the Attorney-General and which will support departments to decide whether to include a delegated power in a Bill. Our hope is that this will support the subsequent development of quality instruments and supporting documentation.

The final group concerns the technical correction of statutory instruments. It would be remiss of me at this point not to draw the Committee’s attention to the excellent work carried out by the National Archives, which oversees the so-called correction slip process. This is a well-established process through which the Government can already make minor, non-substantive corrections to defective statutory instruments after their publication. The National Archives does an excellent job in assessing whether a corrections slip is appropriate on a case-by-case basis and, where applicable, issues the slip to the Vote Office in the Commons and the Printed Paper Office in the Lords.

[Baroness Finn (Con)]

I think the Minister may be talking to the next group of amendments.

[Baroness Twycross (Lab)]

My apologies.

[Baroness Finn (Con)]

My Lords, I thank the noble Lord, Lord Thomas of Gresford, for his response to my amendments, and I am grateful to my noble friend Lord Hunt of Wirral and the noble and learned Lord, Lord Thomas of Cwmgiedd, for their contributions. Having been a member of the Secondary Legislation Scrutiny Committee when I first joined your Lordships’ House—I think it was during the first two or three years of the Brexit legislation—I have full sympathy with the points made on Explanatory Memoranda and lack of impact assessments, so I fully support all that my noble friend said on that.

The noble Lord, Lord Thomas of Gresford, made the point that he disagrees with my Amendments 1 and 2 about only the Minister having the power to lay the statutory instruments before the other place and the time limit. I understand his arguments. On Amendment 3, if we do not want to leave any doubt on “may” or “must”, it is probably simpler to leave it as “must” rather than “may”.

However, I entirely sympathise with the reasons of the noble Lord, Lord Thomas of Gresford, for drafting the Bill. Presently, your Lordships have a binary choice of whether to reject an SI or approve it. There is no procedural mechanism for the Government or Members in another place to consider your Lordships’ reasons for refusal. The Bill would allow any challenge from your Lordships’ House to be considered in another place, and I am pleased that there is within the Bill the clear power for the elected House to reject the proposed changes recommended by noble Lords. This, as the noble Lord argued at Second Reading, preserves the primacy of the elected House over the revising and scrutinising Chamber.

That said, as we will debate in the next group, it is not clear why the power to initiate the “think again” process is vested solely in your Lordships’ House under this Bill. I am pleased to have been able to put our concerns on the record, but, as I said at the beginning of our debate, we support the intentions of the noble Lord, Lord Thomas of Gresford, in bringing forward the Bill. We hope that our constructive amendments have provoked a useful debate on the appropriate powers that this House should have to amend secondary legislation. I beg leave to withdraw the amendment.

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[Baroness Finn (Con)]

My Lords, Amendment 4 seeks to grant another place the same power to initiate the “think again” procedure under Clause 1. In the other place, secondary legislation is considered differently than in your Lordships’ House. When an affirmative statutory instrument is tabled there, it is automatically referred to a Delegated Legislation Committee. These committees have 16 to 18 members, and any member can attend and speak, but only members of the committee can vote. A Delegated Legislation Committee considers an SI but does not have the power to stop it. In some rare cases, the statutory instrument is not referred to a committee but is debated on the Floor of the House if it is of particular interest. Once the statutory instrument has been debated by a committee, it needs final approval by another place before being made and becoming law.

As noble Lords will see, the other place suffers from precisely the same handicap as your Lordships’ House when considering secondary legislation. It has the binary choice to approve or not to approve. That is the question.

I tabled this amendment to probe the willingness of the noble Lord, Lord Thomas of Gresford, to grant an equal power to the other place to initiate the “think again” procedure. We are open to discussions on the precise drafting of this amendment, but it is the principle we are seeking to probe. Why should your Lordships’ House have the power to trigger a process by which Ministers are asked to think again when another place does not have that power? I accept that the Bill grants another place the ultimate say on whether Ministers are forced to amend their instrument, thus preserving the primacy of the elected House, but we do not understand why it is only your Lordships’ House that can initiate a process that asks the Government to reconsider.

[Baroness Twycross (Lab)]

I am not going to go over all the points I already made in anticipation of the noble Baroness’s introduction of group 2. As I made clear, additional training, resources and guidance have been, and continue to be, developed and revised as appropriate to support our genuine, ongoing effort to do better. We hope that this will support the subsequent development of good-quality instruments and supporting documentation.

--- Later in debate ---

[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.

[Lord Thomas of Gresford (LD)]

My Lords, the motivation for this proposal came from a very weary colleague who was fed up with sitting in the Moses Room while instruments were brought back to the Grand Committee from Ministers who had made mistakes some months before—what a waste of time. This debate does illustrate the waste of the time of the noble Lords in this House who sit on committees—the Secondary Legislation Scrutiny Committee, the Constitution Committee and the one I always get the name of wrong and on which I sat—