Strathclyde Review

Lord Wallace of Tankerness Excerpts

Wednesday 13th January 2016 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, I join the noble Baroness, Lady Smith of Basildon, in thanking the noble Lord, Lord Strathclyde, for setting out so clearly and comprehensively the preferred recommendation in his report, and indeed, during the preparation of his report, for meeting my party leader, Tim Farron, and myself to discuss his review. I also thank the noble Baroness the Leader of the House for giving the House an opportunity so swiftly to consider the important matter of the noble Lord’s report. Like previous speakers, I look forward to the maiden speeches during this debate from my noble friend Lady Bowles of Berkhamsted, whom I welcome to these Benches, and our long-standing and very much respected political colleague the noble Lord, Lord Darling of Roulanish.

It is fair to say that, with some noble and honourable exceptions, not many pulses start racing when you mention the subject of statutory instruments. As your Lordships’ House knows only too well, though, the reality is that SIs often contain very important and far-reaching policy detail. I am not going to rehearse all the events surrounding the tax credit regulations; suffice to say that it was a statutory instrument that brought forward policy changes that would have had a significant effect on millions of working people on low incomes. One might be forgiven for having thought that a policy proposal with such far-reaching consequences would have been brought before both Houses of Parliament as a Bill, as primary legislation, giving both Houses the opportunity to discuss the policy in detail at Second Reading, in Committee and on Report, and to propose amendments to it. Indeed, it was possible and conceivable that it could have been put in a Finance Bill, in which case this House would have had no locus at all.

However, that is not what the Government did. They proposed the change in a statutory instrument, for which the scrutiny process is considerably weaker. It is a matter of regret to me, as I am sure it is to other Members of your Lordships’ House, that because of how the Government approached this matter there was no opportunity for Members of this House, nor indeed for those in the House of Commons, to propose amendments to the policy, or for the two Houses to have a conversation and potentially reach an accommodation. As a consequence of the Government’s decision, this House took the only action that I believe it could take to make its voice heard: we voted to delay the implementation of the changes to tax credits until transition measures could be put in place.

On reflection, as the noble Baroness, Lady Smith, has indicated, the Government did of course change their mind, and that also led to the review that has been carried out by the noble Lord, Lord Strathclyde. His report has recommended that the House lose its important power to ultimately reject statutory instruments. This House has long recognised that, although some statutory instruments can be minor, others, such as the one on tax credits, contain significant policy issues, the consequences of which may have a deep and lasting effect on the people of this country.

As a consequence of the Jellicoe report in 1992, this House radically reformed the way it looks at statutory instruments by setting up the Delegated Powers and Regulatory Reform Committee, and the excellent work that that committee carries out has been complemented by the Secondary Legislation Scrutiny Committee. It is disappointing that the House of Commons does not seem to have availed itself of the opportunity to update its procedures in a similar way and to enhance its scrutiny of secondary legislation. As Mr Matthew Parris said in the Times on 19 December:

“MPs need procedures for early whistleblowing when dodgy secondary powers are sneaked into draft legislation”.

The consequence is that, in the vast majority of cases, meaningful scrutiny of statutory instruments is carried out by your Lordships’ House. That is why we on these Benches support and fully endorse the Motion that was proposed by Lord Simon of Glaisdale and carried by this House in 1994, and which is now enshrined in the Companion to the Standing Orders:

“That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration”.

This long-cherished freedom means that, if a parent Act agrees that a delegation is appropriate, this House is entitled to discuss, scrutinise and, yes—in exceptional circumstances—reject statutory instruments. It is an incontrovertible truth that this House rarely rejects statutory instruments. This has only happened now in six instances since the 1946 legislation. We can safely say that six occasions in 70 years means it is a rare event.

My party believes that both Houses of Parliament should be examining better ways to work together to achieve more comprehensive, more informed and more effective scrutiny of the Government’s legislation and their actions. We continue to reject the notion that any Government who achieve a majority in the Commons should have the absolute power to prosecute their business without the burden of proper checks and balances, particularly as voter turnout declines and Governments are elected by a smaller and smaller share of the vote. We believe that a second Chamber, however it is constituted, should not be a mere echo of the House of Commons, and we are interested in ways to strengthen the role of Parliament as a whole, not to convert the House of Lords from an effective revising Chamber into something more akin to an impotent debating society.

I firmly believe that there is a strong case for enhanced parliamentary scrutiny of secondary legislation. This is particularly important when the primary legislation introduced by the Government is a so-called skeleton Bill, with statutory instruments flowing from it which contain provisions that are more suitable for primary legislation. If Governments make increasing use of skeleton Bills, it stands to reason that the statutory instruments stemming from them should be afforded much closer scrutiny.

To that end, my party submitted formal written evidence to the noble Lord, Lord Strathclyde, proposing two different mechanisms by which this House—and the House of Commons—could propose amendments to statutory instruments. We suggested that a controversial SI could be “parked” while a Motion is moved with the wording of the SI embedded in it. Amendments could then be moved and voted upon, at the end of which there may be an amended Motion for the Government to reflect upon. An alternative would be to amend the Government’s Motion to approve statutory instruments to suggest that specific provisions of the SI are removed or replaced with alternative wording. We believe that either mechanism would allow the House of Commons to think again and would in fact reduce the number of incidents where this House withholds its approval of a statutory instrument.

This is in contrast to the recommendations from the noble Lord, Lord Strathclyde, which I fear could diminish the ability of Parliament to hold the Government to account, and, as the noble Lord admits in his report, might lead to an increase in the instances where the House withholds its approval of a statutory instrument. Will the noble Baroness the Leader of the House give some assurance that the Government will not only consider the report of the noble Lord, Lord Strathclyde, but also examine the option of bringing forward procedures which would allow statutory instruments to be amended—or at least proposals to be made as to how they might better be amended—as part of their consideration of the review, and that they will do so within the appropriate committees of this House?

We maintain that it is an important right of both Houses of Parliament to vote on, and occasionally reject, statutory instruments. We do not believe that this House should be required to give up its power of veto when this is such a rare occurrence. To do so would change the arrangements agreed by both Houses following the report of the Joint Committee on Conventions in 2006, to which the noble Lord, Lord Strathclyde, referred. I am somewhat disappointed that the report proposes such a drastic step without suggesting any innovative way to ensure that the effective scrutiny of statutory instruments continues.

On some specifics, I am further concerned by the suggestion that there should be no fixed period for the Government to reflect on concerns raised by this House before pushing a statutory instrument through the Commons for a second time. The noble Lord’s reasoning is that,

“it might in a particular case overrun the time specified in the draft or instrument for its commencement … The Commons needs the ability to override the Lords rapidly in cases of urgency and the extent to which decisions of the House of Lords should be fatal to a particular instrument should not depend on arbitrary factors, such as the commencement arrangements for the instrument”.

Does not the same logic apply to primary legislation, where ultimately this House has the ability to delay a Bill for a year? This particular contention undermines further the ability of the two Houses of Parliament to have a conversation about the policy proposals put forward by the Government. We frequently see in primary legislation that, through a dialogue between both Houses, good sense allows Parliament to reach an accommodation. Instead, what is proposed here could potentially allow a Government to ignore concerns raised by your Lordships’ House. I do not believe that is in the best interests of scrutiny.

Furthermore, I draw attention to page 20 of the noble Lord’s report, where he suggests that removing the ability of your Lordships’ House to ultimately reject a statutory instrument could actually lead to an increase in the number of occasions where your Lordships’ House would approve such a Motion. The report says:

“If that were to happen, there are a number of ways in which it might be dealt with. The House of Commons might need to find ways to expedite its override procedures, which would have the effect of reducing the consideration given to the Lords rejections or it might lead to demands to proceed with option 1”.

That is, the House of Lords might lose its ability to scrutinise secondary legislation entirely. I am deeply concerned that this paragraph contradicts the intention on a previous page of the report that a Government should give “serious reconsideration” to the instrument in question and that they should do this both “seriously and well”.

In fairness to the noble Lord, Lord Strathclyde, he did mention this again today, if only in passing, but I am also disappointed about the problem I have already raised about skeleton Bills. One might say that his report is rather skeletal as to how the matter might be addressed. The noble Lord does not address the issue of a Government using statutory instruments as a means of implementing new policy, rather than putting that new policy before Parliament as primary legislation.

This is not a matter simply a matter for the Prime Minister and the Government: it is, as I think has been recognised by us having this debate today, a matter for Parliament. It is about the relationship between the two Houses, the role of Parliament as a whole in providing effective scrutiny, and the burden of proper checks and balances on the Executive. We on these Benches believe that it would be appropriate for Parliament to deliberate on any further discussion, and it may well be that the Joint Committee could be reconstituted. Whether the noble Lord, Lord Cunningham, wishes to chair it again is another matter, but he proved to be a very capable chair the last time that he did so.

As less and less detail appears on the face of Bills and statutory instruments become more complex and more important, they should be accorded more scrutiny, not less. I regret to say that, alongside the points made by the noble Baroness, Lady Smith, I can do no better than quote from Monday evening’s contribution by the noble Lord, Lord Kerslake, on the Trade Union Bill. Referring to the provisions of the Bill, he said:

“When this is taken with the other measures being put forward by the Government—the curtailing of the powers of this House, the moves to water down the Freedom of Information Act and the reduction in so-called Short money to support opposition parties—there appears to me to be a worryingly authoritarian streak emerging from this Government, who are uncomfortable with scrutiny and challenge”.—[Official Report, 11/1/16; col.79.]

Finally, the noble Lord, Lord Strathclyde, has admitted, as echoed by the noble Baroness, Lady Smith, that he did once pronounce the convention dead. I think he did it in a lecture in 1999, and surely the noble Lord does not want to give it the Lazarus effect. We await with interest to see how the Government will respond.