In the House of Lords this week, I gave a speech in response to the Strathclyde review - in which I warned that the changes risked making the Lords into an impotent debating chamber and that combined with other measures being put forward by the Tories - including FOI changes and cuts to short money, risked diluting scrutiny of the Government.
You can read the speech here:
My Lords, I’d like to join with the Noble Lady, the Leader of the Opposition, in thanking the noble Lord, Lord Strathclyde for his setting out so clearly and comprehensively the preferred recommendation in his report; and for meeting with me and my party leader, Tim Farron, to discuss his review. I’d also like to thank the Noble Lady, the Leader of the House, for agreeing to make time available for the House to discuss this important matter so swiftly after the publication of the Noble Lord’s report.
My Lords, most people’s eyes glaze over when you mention the subject of statutory instruments to them. But as your Lordships’ House knows, the reality is that SIs often contain important and far-reaching policy detail.
I will not revisit in detail the events surrounding the Tax Credits Regulation, but suffice to say that it was a statutory instrument which brought forward very significant policy changes which would have had a very severe impact on millions of working people on low incomes.
One might be forgiven for thinking that a policy proposal with such far-reaching consequences would have been brought before both Houses of Parliament as a bill, as primary legislation. This would have given both Houses the opportunity to discuss the policy in detail, across Second Reading, Committee, and Report stage, and to propose amendments to the policy.
But that is not what this Government did. Instead, it proposed this change in an SI, for which the scrutiny process is considerably weaker. It is a matter of regret to me, and I’m sure 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, or the Other Place, to propose amendments to the policy, for the two Houses to have a conversation, and to potentially reach an accommodation.
As a consequence of the Government’s decision, your Lordships’ House took the only action that it could to make its voice heard - we voted to delay the implementation of the changes to tax credits until transition measures were put in place. Which brings us to the review carried out by the noble Lord, Lord Strathclyde.
His report has recommended that this House lose its important power to reject statutory instruments. My Lords, this House has long recognised that, although some statutory instruments can be minor, others, like the one on tax credits, can contain significant policy issues, the consequences of which could have a deep and lasting impact on the people of this country. As a consequence of the Jellicoe Report of 1992, this House radically reformed the way it looks at statutory instruments by setting up the Delegated Powers and Regulatory Reform Committee. The excellent work of the DPRRC has since been complemented by the Secondary Legislation Scrutiny Committee. It is disappointing that the House of Commons has not updated its procedures in a similar way. As Matthew Parris said in The Times on 19th December,
“MPs need procedures for early whistleblowing when dodgy secondary powers are sneaked into draft legislation.”
The consequence is, my Lords, that in the vast majority of cases, meaningful scrutiny of SIs is often carried out by this 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 our 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, then this House is entitled to discuss, scrutinise and – in exceptional circumstances – reject statutory instruments.
My Lords, it is an incontrovertible truth that this House rarely rejects statutory instruments. This has only happened now in six instances since SIs were created as a category of legislation in 1946. Six occasions in 70 years must surely be construed as rare events.
My Lords, 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 its actions. We continue to reject the notion that any government achieving a majority in the Commons should have the absolute power to prosecute its 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. We are interested in ways to strengthen the role of Parliament as a whole, not to convert the House of Lords from a revising chamber 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 ‘skeleton bill’, with the SIs flowing from it containing provisions which are more suitable for primary legislation. If Governments make increasing use of ‘skeleton bills’, it stands to reason that the SIs stemming from them should be afforded much closer scrutiny.
To that end my party submitted formal written evidence to Lord Strathclyde, suggesting two different mechanisms by which this House – and the House of Commons too - 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 it in. 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. A second possibility would be to amend the Government’s motion to approve a statutory instrument to suggest that specific provisions of the SI are removed, or replaced with alternative wording.
We firmly believe that either mechanism would allow the House of Commons to think again and would, in fact, reduce the incidents where this House withheld its approval of a statutory instrument. This is in contrast to the recommendations from Lord Strathclyde, which I believe could diminish the ability of Parliament to hold the Government to account, and, as the Noble Lord admits in his report, could actually lead to an increase in the instances where this House withholds its approval of a statutory instrument.
Will the Noble Lady, the Leader of the House, commit to examine the option of amending statutory instruments, both as part of the Government’s consideration of the Noble Lord’s review, and within the appropriate committees of this House?
My Lords, 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 the Conventions in 2006. I have to confess I am disappointed by the report from the Noble Lord, Lord Strathclyde, which proposes such a drastic step without suggesting any innovative way to ensure that effective scrutiny of statutory instruments continues.
Turning to some of the specifics of the report from the Noble Lord, Lord Strathclyde, I am further concerned by his suggestion that there should be no fixed period for the Government to reflect on the concerns raised by this House before pushing a statutory instrument through the Commons for a second time. His 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.”
But my Lords, does this same logic not apply to primary legislation, where ultimately this House has the ability to delay a bill by a year?
This particular contention further undermines the ability of the two Houses of Parliament to have a conversation about the policy proposals put in front of it by a Government. We frequently see in primary legislation, through the dialogue between the two chambers, that the good sense of the two Houses allows Parliament to reach an accommodation. Instead what is proposed could potentially allow a Government to ignore concerns raised by your Lordships’ House. That is not in the best interests of democracy, nor of this country.
I would further like to ask the Noble Lord about page 20 of his report where he suggests, as I mentioned previously, 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. In his report the Noble Lord states:
“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, that the House of Lords might lose its ability to scrutinise secondary legislation entirely.
My Lords, I am deeply concerned by this paragraph in the Noble Lord’s report. Does it not contradict his contention on the previous page of his report that a Government should need to give “serious reconsideration” to the instrument in question and that this should be done “seriously and well”?
I am also disappointed that the report from the Noble Lord, Lord Strathclyde, only mentions in passing the very important point I raised earlier, that of skeleton bills. His report simply says that:
“it would be appropriate for the Government to take steps to ensure that Bills contain an appropriate level of details and that not too much is left for implementation by statutory instrument.”
One might say that his report is rather skeletal on the matter. But the Noble Lord does not address the issue of a Government using statutory instruments as a means of implementing a new policy, rather than putting that new policy before Parliament as primary legislation.
My Lords, the matter we are debating today is not simply a matter for the Prime Minister and Government – it is a matter for Parliament. It is about the relationship between the two Houses of Parliament, and 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 any further discussion on the relationship between the two Houses of Parliament is for Parliament itself to deliberate on. The proper way to proceed is to reconstitute a Joint Committee of both Houses to re-examine the relationship between this House and the Other Place.
My Lords, as Governments put less and less detail on the face of Bills, and as SIs become more complex and more important, they should be accorded more scrutiny, not less. It is with a heavy heart that I say that none of this is surprising from a Government which is doing all it can to stifle those who challenge them. I can do no better than to quote from the speech of the Noble Lord, Lord Kerslake, in this House on Monday evening when discussing the Trade Union Bill:
“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.”
My Lords, I await the Government’s response with interest.