Strathclyde Review

Lord Kakkar Excerpts

Wednesday 13th January 2016 Lords Chamber

[Lord Kakkar (CB)]

My Lords, I join in thanking the noble Lord, Lord Strathclyde, for the thoughtful way in which he introduced his review, and indeed for the very thoughtful approach he has taken to it. I believe that a review was necessary because there is a difference of opinion both within your Lordships’ House and between this House and another place over the role that this Chamber should play in the scrutiny and disposition of secondary legislation. A convention can exist only if there is consensus. On this occasion, it is clear that the consensus has started to break down and, therefore, the matter must be addressed. The noble Lord’s review is a starting point, as indeed is this important debate to take note.

We need to recognise that the debate on 26 October raised an interesting and important issue. My understanding previously had been that with regard to statutory instruments, the role of your Lordships’ House was to scrutinise them, but that our response was binary; that is, either to accept them or to reject them. A new, potentially helpful concept was introduced that the House should be able to consider a statutory instrument and provide an opportunity for the Government to think again in a meaningful and real way, and indeed that is what happened on that occasion. The third proposal in the report of the noble Lord, Lord Strathclyde, seems to provide that option in a more definite way, and if one reviews the debate of 26 October, many arguments were made. I was particularly taken by that of the noble Lord, Lord Rooker, when he said at col. 1015 that the powers of your Lordships’ House with regard to secondary legislation were “too drastic”. There must be a possibility for your Lordships, in looking at the development and evolution of conventions, to consider seriously the proposal made by the noble Lord, Lord Strathclyde.

In his review, the noble Lord also makes an important point about the need to look in addition at the way that primary legislation is drafted and, in particular, at the use of delegated powers if this new convention is established for your Lordships’ House. This is important, particularly in terms of the use of delegated powers that may have constitutional ramifications. We have only to look to the previous Session of Parliament and the passage of the Fixed-term Parliaments Act 2011 to note that there are delegated powers in that Act which provide for the extension of the life of this or any Parliament by two months on the basis of a statutory instrument. Two months is a short period, but there is an important principle here with regard to the constitutional implications of that statutory instrument. Therefore, any criteria that are developed with regard to the drafting of primary legislation and the appropriate use of delegated powers must make special reference to those with a constitutional implication.

There is then the question of the many Acts of Parliament currently on the statute book that have delegated powers, some of which may also be used for constitutional purposes. I should like to ask the Leader of the House how the Government would go about providing an opportunity for an understanding of the implications, with regard to existing legislation and delegated powers, in this specific area of constitutional importance so that we can be certain that our important role as guardians, to some extent, of our constitution can be maintained. The Parliament Act 1911 made specific reference to an ongoing and important role of your Lordships’ House at that time to ensure that the life of a Parliament could not be extended beyond five years. That provides the context of our constitutional responsibilities and therefore the need, in taking forward these proposals, to ensure that there are no unintended consequences that serve badly our country, our fellow citizens and this Parliament in the future.