Statutory Instruments (Amendment) Bill [HL]

Lord Thomas of Gresford Excerpts

Friday 18th October 2024 Lords Chamber

Moved by

[Lord Thomas of Gresford]

That the Bill be now read a second time.

[Lord Thomas of Gresford (LD)]

My Lords, your Lordships will remember the controversy in the House in 2015 over the regulations withdrawing £4 billion of tax credits, affecting 3 million people. Everybody had a go: opposition to the Government’s measure outside the House was led by the Mayor of London, one Boris Johnson; the Liberal Democrats laid a straightforward fatal Motion, which did not pass; and the Bishops laid a regret Motion, which was pre-empted. The amendments by the noble Baroness, Lady Meacher, on the Cross Benches and by Baroness Hollis, who will long be remembered for her acuity and her passion for Labour causes, succeeded. Their amendments were to decline to consider the regulations until the Government had undertaken certain actions—in particular, consultation and a consideration of an analysis by the Institute for Fiscal Studies.

Although the Clerk of the Parliaments had advised that these were not fatal amendments, the Government treated them as such. The noble Earl, Lord Howe, said there was only “a binary choice”: approve or disapprove. The noble Baroness, Lady Smith of Basildon, then Leader of the Opposition, said this:

“We believe that our Motion is the only one that can lead to meaningful change. It gives Ministers the opportunity to take a step back and listen properly to the clamour of voices calling for them to think again. That is the right role for your Lordships’ House to take”.—[Official Report, 26/10/15; col. 1022.]


Today’s Bill creates a mechanism that will allow the Commons, if they have already approved the instrument, and, more importantly, the Minister who promotes the secondary legislation to think again.

On 27 October 2015, the day following the passionate tax credits debate, the Times headline was: “Osborne vows to rein in Lords after humiliation”. There were threats that 150 Conservative Peers would be created—well, that happened anyway. But on that following day, the day of the Times headline, something very interesting happened in this Chamber: there was a different fatal Motion on a different subject, electoral registration. It was moved by the noble Lord, Lord Tyler, on behalf of the Liberal Democrats. The noble Lord, Lord Kennedy of Southwark, then the Labour home affairs spokesman, moved an amendment—with some passion—to strengthen our Motion, which the noble Lord, Lord Tyler, duly accepted. It succeeded by 10 votes. The Labour-amended fatal Motion was then immediately put to the House but, to the Liberal Democrats’ surprise, was defeated by 10 votes. An analysis of the voting shows that 11 Labour Peers had failed to go through the Lobby again. I cannot believe that their dinner engagements were so pressing that they could not have delayed the five or 10 minutes necessary to walk through a second time—we do it all the time in this House.

The Labour Party in opposition, presumably as a matter of policy, did not support any fatal Motion thereafter, even through all the Brexit legislation. It had some reason for caution: the Tories had brought out their most effective howitzer, the noble Lord, Lord Strathclyde, to carry out a review, and in particular to consider

“how to secure the decisive role of the elected House of Commons in relation to its primacy on financial matters, and secondary legislation”.

His review, when it emerged, was prefaced with an introduction:

“The Lords convention on statutory instruments has been fraying for some years”,


and it was

“imperative that we understand better the expectations of both Houses”.

He considered three options, the first of which was the removal of the House of Lords from statutory instrument procedures altogether. That he rejected, but he did recommend that a new procedure should be created, set out in statute—note that: in statute—allowing the Lords to invite the Commons to think again when a disagreement exists, although still insisting on Commons primacy. I believe my Bill does just that.

As pointed out by the DPRRC, the SLSC and the Constitution Committee in a series of reports, the noble Lord, Lord Strathclyde, and his distinguished advisers had been tasked with the wrong question. The key concern was not the primacy of the House of Commons; the relationship at issue, these committees held, was the balance of power between Parliament and the Executive.

The Government’s response to the Strathclyde review was to do nothing. The Leader of the Commons, David Lidington, said that the Government remained concerned that there was

“no mechanism for the elected chamber to overturn a decision by the unelected chamber on SIs”.

Again, I believe my Bill deals with that issue.

This Bill does not come out unaided off the top of my head. Not only have I paid regard to the views of the noble Lord, Lord Strathclyde, in his review but it follows from the work being done by the Hansard Society in relation to secondary legislation. I am very grateful to the society for the hard thinking it has put into it.

The amendment to the 1946 Act in Clause 1 introduces a simple mechanism: when the House of Lords is considering the approval of a draft statutory instrument under the affirmative or “made affirmative” procedures, it may withhold such approval, as suggested by Baroness Hollis in 2015, pending the resolution of concerns which are to be communicated to the House of Commons. The mechanism would be by message, as usual, and when that message is received the Minister would be required to table a Motion in the Commons to debate the House of Lords’ concerns. The Commons may reject those concerns, in which case the instrument comes back to the House of Lords either to approve or to disapprove as drafted.

The Commons may, on the other hand, request that the Minister make amendments to the instrument to reflect the concerns it has received. The primacy of the Commons is entirely observed by this proposal. I recognise that the Minister, in tabling a draft statutory instrument in the first place, is exercising a power granted to him or her by Parliament in an enabling Act. This Bill does not interfere with that prerogative. With subsection (4), the Minister has a choice, within 40 days of receipt of a request from the Commons, either to withdraw the draft instrument or to lay a further copy, as amended or unamended, in the usual way. Where the draft instrument is re-laid, amended or unamended, that is it—no ping-pong or agreement between the Houses. The Lords has no second opportunity to voice concerns.

I have been advised that to amend the negative procedure would be technically tricky. Accordingly, as a first step, I have concentrated on the affirmative procedures. Clause 2 puts into statutory form an existing non-statutory slip rule, and Clause 3 is a technical consequential.

Two points remain. First, how frequently would this House use the conditional amendment power proposed? The assessment of the noble Lord, Lord Strathclyde, so far as his option was concerned, was that in practice there would be no significant increase in Motions to amend. Similarly, I would expect the mechanism in this Bill to be used to express concerns in place of Motions to Regret, but it would be more positive and constructive, and no more frequent than the current use of that procedure.

Secondly, what concerns would be addressed? An analysis of the successful regret Motions passed in the last two Sessions—five and four Motions respectively—shows that, apart from two attempts to introduce by secondary legislation matters that had previously been rejected in primary legislation, the main concerns have been failures by the relevant Minister to have regard to an impact assessment or other information from outside sources, and lack of consultation, which should have informed and influenced his decision. For instance, in the modern slavery regulations, there had been no consultation on the definition of “slavery and trafficking” and, consequently, the scope of those regulations was argued to be too narrow.

The fundamental problem with the present procedures is that secondary legislation is unamendable. All the regulations relating to the nine regret Motions on which the Government were defeated went through anyway, as laid, without any amendment. This Bill will encourage a discipline which will ensure that policy is set out in amendable primary legislation. That will mean fewer skeleton Bills like the unfortunate Product Regulation and Metrology Bill, which, disappointingly, is limping through the House at this, the earliest moment of this Government’s legislative programme.

I began with quotes from the Leader of this House and the Lords Chief Whip in the new Government. I end with a passage from the new Attorney-General, the noble and learned Lord, Lord Hermer, from his excellent Bingham lecture on Monday of this week. He said:

“Excessive reliance on delegated powers, Henry VIII clauses or skeleton legislation upsets the proper balance between Parliament and the Executive. This not only strikes at the rule of law values that I have already outlined but at the cardinal principles of accessibility and legal certainty”.


He continued:

“In my view, the new Government offers an opportunity for a reset in the way that Government thinks about these issues. This means, in particular, a much sharper focus on whether taking delegated powers is justified in a given case, and more careful consideration of appropriate safeguards”.


I hope the safeguard that this Bill envisages will appeal to him. I beg to move.

--- Later in debate ---

[Lord Thomas of Gresford (LD)]

My Lords, I thank noble Lords, who have spoken so well in this debate and are generally supportive—although perhaps not in all the detail that I would like. I congratulate the Minister on her response at the Dispatch Box, which was been extremely interesting and well said.

The noble Lord, Lord Hunt, referred to the anachronistic rules that we have at present, which he said smacked of an earlier era. The Minister went further, saying that it has been a running sore since 1539. It might be time to apply a patch or two to that particular running sore. I have not attempted to revise the whole of the statutory instrument procedure. It is a big task. I did not look at the negative resolutions at all. “One step enough for me” is a familiar phrase. This is a first step, which I commend to the Government, in their early days.

I thank the noble Baroness, Lady Neville-Rolfe, for her contribution and her good wishes, but she rather forgot the role of this House, which is as a revising Chamber. That is why we are here, to ask the Commons to think again—or the Minister, when they effectively are making the law, as happens with statutory instruments. That is what we are here for. There is no point in coming here otherwise. The suggestion that my Bill attacks the primacy of the Commons misunderstands what I am trying to do. This House should send a message to the Commons to think again. If the Commons says, “We are not interested; we will not think again”, then that is it. The Bill then comes back to this House and we either approve it or disapprove it. When the Statutory Instruments Act was passed in 1946, in the early days of the Attlee Government, that was thought of as a check on legislation. It has been used about seven times in the history of statutory instruments. Consequently, it is no longer an effective check. Regret Motions are useless. Many people do not bother to vote or come to listen to proceedings where regret Motions are involved.

I am not attacking the primacy of the Commons. I am saying, “Think again”, and that if the Commons says, “Get lost”, well, that is it. Similarly, if a Minister is presented on the other hand with reasoned concerns from this House, such as that there has been no consultation and no impact assessment, and has the same message from the House of Commons, he may very well think that he should withdraw the instrument which has been put forward and not pursue it in that form.

We are a long way from Henry VIII, but he increasingly holds sway. I refer to the new Bill concerned with standards that is going through. It is a bad Bill. What does it mean? It brings about bad government. The Government have been going for two or three months and they are producing—I say this with the greatest respect—bad law. It is the absolute epitome of a Bill which hangs secondary legislative powers from its branches. No doubt it will proceed in due course through all stages in this House, but the Government should expect to hear disappointment from those of us who hoped there would be a change from the addictions of the past—addictions to which the noble and learned Lord, Lord Thomas of Cwmgiedd, referred.

The noble and learned Lord pressed the point that primary legislation is required to deal with this problem. The Hansard Society said, in relation to this Bill, that it would prefer the introduction of a conditional amendment procedure to be through an amendment to Standing Orders—great. The reason that I am looking for primary legislation is that, as the joint reports of the committees to which I referred earlier stated, the issue is not the primacy of the Commons but the balance between Parliament and the Executive Government—the elective dictatorship to which my noble friend Lord Wallace of Saltaire referred. An editorial in today’s Guardian, “Modernising Parliament: Time for Creative Changes”, suggested that:

“Parliament can sometimes come across as an alien irrelevance, in which politicians spout platitudes offering little hope to stressed lives.”


The 2015 debate regarding tax credits for 3 million people is an excellent example, where the Government paid no heed at all to the decision of this House that they should think again, despite the fact that they were dealing with so many millions of people and so much money. I have no confidence at all that any Government would be motivated to modify Standing Orders in favour of Parliament. Parliament must fight its own corner, by the use of its legislative powers, and this Bill is where it starts.

Bill read a second time and committed to a Committee of the Whole House.