Statutory Instruments (Amendment) Bill [HL]

Lord Thomas of Gresford Excerpts

Friday 14th March 2025 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, in the light of what the noble Lord, Lord Hunt, has said, I do not wish to say anything about the urgent need for reform. Clarifying the use of the word “may” via Amendment 3 is sensible. You do not want to leave any dispute about it because “may” often means “must”, at least to a lawyer.

However, I have concerns about the effect of the other two amendments. First, given the speed at which statutory instruments proceed, giving the House power to delay for only 40 days might mean that a Minister will shrug his shoulders and say, “So what?” Secondly, it seems to me that if the procedure in subsection (2) is to be followed, then “a Minister must” is completely right, as is the use of “must” in line 16. The “must” in subsection (2) is right because you want to ensure that the Minister does something; it should not be at his discretion.

In discussions when the result of the last election was more speculative, one picked up the feeling in the House that some people would be happy to see the procedure changed so that there was proper scrutiny. But, as it currently stands, the statutory instrument procedure is the most wonderful tool for a Government, because it enables them to avoid lengthy—in my view, sometimes wholly unnecessarily lengthy—debates in the House. Unless we can make the statutory instrument procedure work more effectively in the manner suggested by this Bill, it seems to me that we are steadily eroding the power of this House to properly examine important legislation. One has only to look at something such as the Product Regulation and Metrology Bill. I completely understand why the Government wanted that to be a framework Bill, because the procedures of the House make it impossible to do it by primary legislation, but if we cannot change our procedure for primary legislation, we have to change the procedure for secondary legislation. Therefore, I support one of the amendments in this group, but not the other two.

[Lord Thomas of Gresford (LD)]

My Lords, I am most grateful to both the noble Lord, Lord Hunt, and the noble and learned Lord, Lord Thomas of Cwmgiedd, for their support. They have really said everything that I could say about the simple provision that is being put forward. I just say that the amendments are really misconceived. If the second amendment, to put “may” for “must” in subsection (2), were passed, it would mean that the Minister would have discretion not to bring the matter before the House of Commons at all, and that would be the end of it: after 40 days, nothing happens and the provision goes through unamended, with all its faults.

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[Lord Thomas of Gresford (LD)]

My Lords, my objection to this amendment is that it simply does not make sense. We cannot, in the machinery that is set out in my Bill, conceivably exchange the position of the House of Lords for the House of Commons. I am not proposing legislating for the House of Commons but for the House of Lords, in the fulfilment of its function as a revising Chamber. If you change the words round—to read “House of Commons” instead of “House of Lords”—we would be asking the House of Commons to advise itself that it has made a mistake. I do not think that that can be done. The amendment put forward by the noble Baroness, I regret to say, does not make sense in the way that it is framed.

The machinery I have proposed allows the House of Lords to consider an instrument that is put before it and whether it has any concerns. If it has concerns, it does not form them into an amendment to the instrument; it simply conveys those concerns to the House of Commons for it to consider. Clause 1(2) offers two possible courses of action for the House of Commons: it can reject the concerns expressed altogether, and that is the end of that; alternatively, it can request the Minister to make amendments to the draft instrument. It is the House of Commons that makes the suggestion, to the Minister, of an amendment.

You cannot reverse that and suggest that there should be some machinery in the House of Commons to ask the House of Lords to make suggestions of amendments and to frame amendments for a Minister to make. It just does not make sense. Accordingly, since this particular amendment is a complete muddle, and with the greatest respect for the noble Baroness, I ask her to withdraw it.

[Baroness Finn (Con)]

My Lords, I am grateful to the noble Lord, Lord Thomas of Gresford, for engaging with me on this amendment yesterday. I understand why, as he explained then, he thinks that it does not make sense.

We tabled this amendment to highlight the fact that the other place, just like your Lordships’ House, has no power to amend statutory instruments. If your Lordships’ House should have the power to initiate a “think again” process, with the consent of the other place, and to send Ministers back to look at their instrument again, we do not understand why the reverse should not be true—that the other place has the chance to look at it, not just that the Minister bring it.

It could be argued that when the other place disagrees with an instrument as the elected House, it should decline to approve it, yet we know that that has not happened since July 1978. It has been your Lordships’ House that has been more forceful in these matters, having rejected four statutory instruments by fatal Motion since 1997. I beg leave to withdraw the amendment.

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[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—

[Noble Lords]

The Delegated Powers and Regulatory Reform Committee.

[Lord Thomas of Gresford (LD)]

I thank noble Lords. We spend a long time worrying about whether things should be affirmative or negative. The debates then take place, there are regret Motions and the whole House is trooping through the Lobbies. There is a great deal of worry for everybody to be here. There is barely a sentence in the press the following day. Even if the regret Motion is won, nothing happens.

The proposal in Clause 2, on corrections of statutory instruments, puts into statute and gives a bit of “oomph” to what already exists through the National Archives and the work that it does. I am not saying that that is not done but it has no publicity. It does not have an airing. People’s views are not heard in this Chamber.

Therefore, I resist the noble Baroness’s clause stand part notice and ask her to withdraw it.