§ 3.7 p.m.
§ Lord Dean of Harptree rose to call attention to the case for a power of delay on statutory instruments, as recommended by the Royal Commission on the Reform of the House of Lords; and to move for Papers.
The noble Lord said: My Lords, owing to the luck of the ballot, I am glad to have this opportunity to follow up the Unstarred Question on statutory instruments which was debated on 7th December 1999. I am very grateful to noble Lords in all parts of the House who are to take part in the debate. Noble Lords have a rich vein of knowledge of parliamentary procedure which will add greatly to the authority of this debate. I am also grateful to the noble and learned Lord, Lord Falconer of Thoroton, who is to answer the debate. I hope that I shall be equally grateful after he has replied.
Events have moved on since I tabled this Motion. On 22nd February of this year your Lordships decided by a substantial majority to reject an affirmative order. In so doing, the House exercised its undoubted right. As the noble and learned Lord, Lord Simon of Glaisdale, frequently reminds us, this power is rarely used. I suggest to noble Lords that that vote was one of enormous parliamentary significance and importance. It showed clearly that the interim House had confidence in its legitimacy. I am sure that that is the way in which the Leader of the House would put it.
I was originally attracted to the proposal of the Royal Commission that your Lordships' House might have power to delay statutory instruments for three 810 months, but I believe that that recommendation was overtaken by the vote on 22nd February. I do not expect that this power will be used very often. I assume that it is likely to be used only when the House is strongly opposed to a major order. I do not believe either that the use of this power by the House in any way alters the balance between the two Houses. After all, the Government can re-introduce the same order or amend the order to take into account the views of the House. Ultimately, they will be able to get their statutory instrument, as they can now.
Statutory instruments have a long history. One can trace the germ to the Statute of Proclamations by which Parliament gave King Henry VIII power to legislate by proclamation. Of course, their number and their importance have increased enormously in recent years. They now affect so many aspects of our personal lives. The Royal Commission gave the figures: in 1900 there were 174 general statutory instruments and 821 local ones. By 1998 this had risen to 1,576 general instruments and 1,747 local ones. That is probably inevitable given the complexity and the range of modern legislation.
Your Lordships in all parts of the House would probably accept that we need flexibility. We also need to be able to give a quick response to changing events. Primary legislation is clearly too slow to deal with all the emergencies that may arise. As I think we agreed, the trouble is that the ability of Parliament to scrutinise has not kept pace with the number and importance of statutory instruments. That is not to belittle the valuable work done by the Joint Committee on Statutory Instruments and the Delegated Powers and Deregulation Committee. The terms of reference of these committees are limited. They are not able to consider the merits of the orders.
I had the privilege of serving on the Delegated Powers and Deregulation Committee until I was regulated off, having served my term. I am delighted to see that three of my former colleagues are to speak in this debate: my noble friend Lord Alexander of Weedon, the chairman of the committee, the noble Lord, Lord Goodhart, and the noble Lord, Lord Dahrendorf. It was my great pleasure to serve with them on that committee. I am sure that the House will listen with very great interest to the advice of those members of the committee regarding their possible further help by undertaking a greater role in the scrutiny of statutory instruments.
What can be done to improve the procedures? There have been various suggestions, some of which have come from another place. Clearly, any changes that your Lordships' House may decide to make will have relevance to the House of Commons. Most of these proposals were discussed eloquently in the Royal Commission's report. I should like to refer to them briefly. One suggestion was that there should be a new category of super affirmative instruments subject to scrutiny before being formally laid. A variant of that is that there should be pre-legislative scrutiny of the most important statutory instruments.
811 The Government deserve great credit for introducing quite a large number of Bills in draft to enable consideration by Parliament and outside interests before they are set in concrete. I think that this development needs improvement because Bills that have been through the pre-legislative scrutiny are still coming forward with large numbers of government amendments. None the less, the principle is sound. I suggest that if it is sound for primary legislation, it is equally sound for the most important of the statutory instruments; namely, secondary legislation.
Another proposal has been made that there should be a sifting committee to make recommendations on the handling of particularly important statutory instruments; for example, by referring them to the relevant Select Committee or an ad hoc committee. I suggest that this could help both Houses to identify and concentrate on the major statutory instruments. If this committee is set up, it might be better for it to be a joint committee of the two Houses so as to avoid duplication.
My next point is whether the House should be able to amend statutory instruments. The Royal Commission advised against that. I suggest, with due respect to it, that there is a case for amendment as well as the blunter instrument of rejection. This argument would be less strong in cases where statutory instruments have been subject to pre-legislative scrutiny.
All these proposals for procedural reform need to take into account devolution and the relationship between the devolved bodies and Westminster. There are many questions, including the handling of statutory instruments, that require attention. I am very pleased to see the noble Lord, Lord Prys-Davies, in his place today. I know that he has made a special study of these problems and the way in which they should be resolved.
I hope that it is now felt that the time is right to proceed with these amendments. The Royal Commission made certain recommendations on the composition of the House. I think it is generally recognised that it is very unlikely that these proposals would make any progress in this Parliament. It is going to be difficult enough to obtain agreement anyway on composition. But the atmosphere will not be right to have agreement in the run-up to the next general election. That is not the case as far as concerns procedural reforms where there is a wide measure of agreement. Reforms are already under way. Parliament has agreed to set up a Select Committee on Human Rights. A Select Committee on Constitutional Affairs seems to be broadly agreed, and it is probably only a matter of a short time before that is established.
My plea is that these varied suggestions for much needed improvement in the scrutiny of statutory instruments should be considered now. I hope that the House will agree that the Liaison Committee or the Procedure Committee should be invited to make recommendations for early action. I hope also that the 812 noble and learned Lord, Lord Falconer, will be prepared to give this plea a fair wind. My Lords, I beg to move for Papers.
§ 3.19 p.m.
§ Lord Peston
My Lords, I congratulate the noble Lord, Lord Dean of Harptree, both on winning the ballot and on introducing this very important debate. I congratulate him also on the excellent and dispassionate way in which he has done so. I find myself in the rare position of agreeing pretty well entirely with a speech made from the other side of your Lordships' House.
In a way, I am sorry that the noble Lord had 10 introduce this debate because I regard it as quite deplorable that the usual channels have not arranged a full-scale debate on the mode of operation of the interim House. They should have done that. The noble Lord, Lord Dean, reminded us about the particular vote on a statutory instrument a few weeks ago. I remember arguing at the time that, although we had the powers, we really should not have done what we did then without first debating our whole new approach to this issue. However, I was unable 10 persuade a sufficient number of noble Lords of the correctness of that view. While agreeing entirely with the noble Lord, I am not happy that we are making up new rules as we go along. Apart from today's debate, we must have a full-scale debate about the way the interim House should and will behave.
I regard the interim House—the House in which we are currently sitting and standing—as more legitimate. It will be even more legitimate still when the deficiency of numbers of Liberal Democrat and Labour Peers is made up, I hope in the very near future. I am convinced that the interim House can be an excellent revising Chamber—perhaps I may add another acerbic remark—especially when the problem of lack of resources and facilities is faced up to and solved. Therefore, while I am on the subject of debates, I think it is equally deplorable that the usual channels have not arranged a full-scale debate on the central question of resources and facilities.
On the report of the Royal Commission, Chapter 7 contains a great deal with which we could agree. Perhaps I may add, exactly as the noble Lord, Lord Dean, said, that much of that does not seem to require moving on to further stages of reform, much as we would like them. We can do it now and I think that we ought to do it now. In the evidence we gave to the Royal Commission, my noble friend Lord Barnett and I emphasised that side of the subject because we felt that concentrating on what we called "practicalities" might be at least as important as concentrating on the vexed question of membership and so on. That remains my view and I hope that it remains the view of my noble friend. I look forward to hearing from him on that matter.
Perhaps I may add one specific point on secondary legislation which we made to the Royal Commission. It is our view that if we scrutinised secondary legislation more seriously, it would improve our ability 813 to deal with primary legislation. One of the reasons why we go in for a great deal of nit-picking and generally "on the face of the Bill" stuff on primary legislation is precisely that we do not trust what will happen when the secondary legislation, which often contains the real meat, comes forward. So we insist on it happening in primary legislation. We could become very much more efficient if we went down the path to which the Royal Commission somewhat guides us and certainly the noble Lord, Lord Dean, guides us and with which I totally agree.
In our evidence my noble friend Lord Barnett and I made a point—I have not consulted my noble friend on what I am about to say but the noble Lord, Lord Dean, also raised the point—on which I am now not sure that we are right. We said that we should be able to reject secondary legislation but we should also be able to amend it. Obviously, we need to retain the right to do so, but, on reflection and having thought about some of the examples, my judgment is that amending secondary legislation could be so complicated, given how important it is to the Bill, that I am beginning to think that it might be more important for us to say, "We vote against this piece of secondary legislation for the following reasons. We think that the Government ought to bring back the secondary legislation with amendments from their expert draftsmen that meet our requirements". In other words, I am not at all certain that I want to get into the business of redrafting secondary legislation, on which one often lacks the expertise. That is about the only way in which I backtrack from the original position which my noble friend and I took on that point.
I wish to emphasise two points which the noble Lord, Lord Dean, emphasised. I do so to show my support. I strongly favour the idea of pre-consideration of secondary legislation and I favour the idea of sifting. We do not want to look at all such secondary legislation. But if we had a committee to sift it and one could go to the committee and say, "We think that this is one that you ought to look at", it would improve our efficiency, which is very much in my mind in approaching these matters.
The only other point I wish to make relates to something which puzzles me about Chapter 7 of the report. Chapter 7 seems to accept the view—I think it is on the preliminary stage—that we can have a vote, the Commons simply takes no notice of us and after three months the secondary legislation is carried. Of one thing I am absolutely certain. If noble Lords devote some of their time and effort in any way whatever to secondary legislation, whether we vote to send it back for a rethink or vote to annul it, which means "rethink and redo it", the Commons should be obliged to respond with a reasoned argument, as they have to do on amendments and so on, before we have to back down.
My final remark, which may horrify one or two noble Lords, is that I believe that both with primary and secondary legislation the age of ping-pong ought to end. In other words, as part of the ultimate reforms, we should have the full right to say, "We don't like it".
814 But if the Commons have gone through correct procedures to argue against us, the nonsense which I have seen over a great many years—I fear that we shall see quite a lot of it this year—of legislation going backwards and forwards, the scene repeated, with the Commons begging to differ, has to come to an end. Your Lordships' House as a revising Chamber should have the right to do two things: to say to the Commons, "You have got it wrong and we are going to vote against it". But if they insist on bringing it back and will not give in to us, we should do what we all do in our personal lives; and when it eventually goes wrong, we can simply retain the right to say, "We told you so". I would rather have the "I told you so" position than the ping-pong position, which I really do not believe is a great credit to this House or to Parliament generally.
I conclude as I began. The noble Lord, Lord Dean, has done us a great favour. I very much hope that my noble and learned friend Lord Falconer will respond positively. But, ultimately, it is up to your Lordships' House to start to press about what it would like to do.
§ 3.26 p.m.
§ Lord Alexander of Weedon
My Lords, I am very glad to speak in this debate in support of my noble friend Lord Dean of Harptree. My noble friend was for four years a most valued member of the Delegated Powers and Deregulation Committee and his speech makes an outstanding case for improved scrutiny for secondary legislation.
We would all agree that the quality of our lawmaking is crucial; and our laws are increasingly made through secondary legislation. The Procedure Committee of the House of Commons in 1996 and very recently has drawn attention to the inadequacy of scrutiny of such legislation in that House. Indeed, it is this House which in recent years has shown the most concern for secondary legislation. But there is still, as my noble friend Lord Dean said, much we must do if we are to equip ourselves effectively and properly to scrutinise across the board. I suspect that there would be agreement on all sides of the House that this is an area where there is a very clear role for this House to fill.
I also see it as a promising time to make positive proposals. There is already a recognition that pre-legislative scrutiny, of the kind undertaken by the Burns committee for the Financial Services and Markets Bill and for deregulation orders under the admirable procedures of the Deregulation and Contracting Out Act 1994, can improve our legislation. There is also an acceptance by government that both primary and secondary legislation must comply with the Human Rights Act and be certified to do so. A disciplined, consultative, regulation-making process will make for better, fairer and more efficient regulation.
On behalf of the Delegated Powers and Deregulation Committee, I had the privilege of giving oral evidence to both the Royal Commission on House of Lords Reform and to the House of Commons 815 Procedure Committee on its recent inquiry into delegated legislation. I warmly welcome the recommendations about delegated legislation in both reports, although in the case of the Royal Commission I think its recommendations did not go far enough. My starting point is the Royal Commission's recommendation 35:There is a strong case for enhanced Parliamentary scrutiny of secondary legislation. The reformed second Chamber should make a strong contribution in this area".What we in this House must, I believe, address, and address now, is how to respond to the recommendation s of the Royal Commission and the House of Commons Procedure Committee so as to create a more effective scrutiny system which builds on the strengths of the House of Lords. I should like to suggest five possible ways in which we could go about that. I do not seek to be prescriptive, because there are obvious variants.
First, the House should be given a formal power to delay secondary legislation. It is true that the House has asserted power recently to reject secondary legislation; however, I still believe that a delaying power would be a useful way in most cases to seek to work towards an amended order. If we adopt a delaying power, it should be for a period of six months, to accommodate the processes of trying to agree change and the proposed increased 60-day praying time for negative instruments. I regard a formal power of delay as valuable.
Secondly, there should be a sifting mechanism for statutory instruments. The Royal Commission supported the establishment of a new joint sifting committee. Alternatively, it suggested that the Lords might set up a sifting committee on its own, perhaps inviting the Delegated Powers and Deregulation Committee to take on the task. I hope it is not idleness when I say that I do not believe that the Delegated Powers and Deregulation Committee would be other than the second-best option. The less bureaucratic option would be to involve those Lords who are members of the Joint Committee on Statutory Instruments, who, with their legal advisers, have to plough through a myriad of statutory instruments in any event, and ask them to perform this additional role. Another House of Lords committee to carry out the sifting exercise seems a potentially profligate use of our limited resources, and admirable only for the process of felling more forests.
Thirdly, there should be a scrutiny mechanism for statutory instruments which had been sifted as requiring detailed scrutiny. The question of what to do with statutory instruments that are sifted as "high profile"—the "A" sift, in the terms of our own European Union Committee—seems to be one of the weakest points in the Royal Commission report. I suggest that an ad hoc committee should be appointed swiftly by the Committee of Selection to scrutinise each such instrument identified by the sifting committee. The committee could then hold hearings in public involving the Minister and other interested bodies, perhaps in the form of an all-day seminar rather than the more traditional form of a somewhat 816 slow-moving Select Committee. It could examine carefully the regulatory impact assessments, which are now routinely prepared in most cases, and which in most cases similarly receive very little parliamentary scrutiny. I am conscious that this proposal will have resource implications. But like the noble Lord, Lord Peston, I believe that if the ideas are right we should start planning the necessary resource level now.
Fourthly, there should be a category of "super affirmatives", as it has become known in the jargon, recommended by the House of Commons Procedure Committee and supported by the Royal Commission. Some statutory instruments are so important, or so sensitive, that Parliament should consider them in draft, so that they can be amended in the light of consultation rather than waiting for them to be la id formally before Parliament and found wanting. It may well be that few statutory instruments should, or would, fall into this category. But on such occasions, I suggest that there is a good precedent in the deregulation Act procedures for such instruments to be laid in draft. We can all think of instruments which should fall into this category. It seems that it would be possible for the Delegated Powers and Deregulation Committee, in examining secondary legislation proposed in Bills, to identify at that stage which instruments, even if in rare cases, should be subject to the "super affirmative" procedure.
My fifth and final specific point is that the Statutory Instruments Act 1946 should be amended to extend the statutory "praying time" in respect of negative resolution instruments from 40 days to 60 days. Judging from the experience of the Delegated Powers and Deregulation Committee in scrutinising deregulation orders, where the initial scrutiny period is 60 days, I cannot see how in-depth scrutiny of some of the more controversial statutory instruments should be confined to 40 days. Indeed, in our own recent look at the controversial proposal to extend licensing hours on Sundays, we were grateful that the 60-day scrutiny period was extended as a welcome by-product of the short half-term Recess. But within that 60 days the committee had to meet six times to consider the proposal and to weigh the submissions of the 84 organisations and individuals who took the time to write to us about it. If we are serious about scrutiny, a 60-day proposal would seem more appropriate.
The volume of secondary legislation has increased, is increasing and is unlikely to diminish. That has been the thread running through this debate, and I look forward to hearing others of my colleagues on the Delegated Powers and Deregulation Committee make their contribution. The statistics that the Government recently provided in response to my Questions for Written Answer show that the increase is particularly true for negative instruments—those instruments which Parliament at present almost always nods through without comment. At the same time, the importance of much of the content of secondary legislation is increasing. It covers increasingly complex issues, perhaps especially in relation to information technology, where the goalposts are constantly changing and which is therefore a prime candidate for 817 secondary legislation. It covers increasingly sensitive instruments, especially as we grapple with the immediate consequences of this Government's highly commendable and highly courageous step of incorporating the European Convention on Human Rights. Much, if not most, incompatibility with the European convention, and so with our own Human Rights Act, is likely to lie for consideration in the context of secondary legislation.
Whether we like it or not, we cannot stop the upward trend of secondary legislation. If we fail to take account of it in the House of Lords by pickling our scrutiny procedures in the aspic of the past, we shall be failing in our task as legislators. Seeing the interest in this debate on all sides of the House, I believe that we can, we must, and we want to rise this challenge. If we do so, we shall assist this House to become the second Chamber that the country merits.
§ 3.38 p.m.
§ Lord Dahrendorf
My Lords, in meetings of the Delegated Powers and Deregulation Committee, most of us do not usually add much once our chairman, the distinguished noble Lord, Lord Alexander of Weedon, has spoken. I certainly rise to speak with some trepidation. I remember coming on to the committee over two years ago and realising that the noble Lord, Lord Dean of Harptree, was both a model and a mentor from whom one could learn how to conduct the no-nonsense business of that committee. The noble Lord also has a characteristic style, which is the style underlying this debate. It is an apparently technical debate, but I want to argue that it is one of considerable constitutional significance.
There are good reasons why the Wakeham commission has devoted a whole chapter to the issue of statutory instruments. The basic point is that legislation now takes place in a whole variety of ways, and what one might call non-orthodox forms of legislation are growing in importance. Statutory instruments alone have nearly doubled in the past 20 years and have risen to a particularly high plateau in the past eight years.
We now make laws in a number of ways: as primary legislation; as secondary legislation—that, in turn, appears in a variety of forms; by the creation of bodies which themselves have legislative powers—the extreme case, of course, is European legislation, but, as noble Lords who have listened to some of the debate will know very well, the Financial Services and Markets Bill creates such a body; and, of course, by guidance, guidelines, directives, or whatever they may be called. That raises enormous problems of scrutiny. Indeed, it raises questions as to the proper role of Parliament. I am very pleased that the noble Lord, Lord Norton of Louth, is to speak later in the debate because I know that that is one of his special concerns.
One must agree with the Wakeham commission that the sheer volume and level of detail of legislation is overwhelming, notably for the elected Chamber which has so many other functions. I do not wish to be a bore 818 on the subject, but here again, in the case of secondary legislation, I believe that we have a good case for an appointed Chamber with Members who have the expertise and, incidentally, the time and who do not have to seek publicity. That is one of my arguments for a particular way forward in that regard.
The question raised by the noble Lord, Lord Dean, is: what do we do at the end of the scrutiny process? The Royal Commission does not want us to have the power to amend statutory instruments. It argues that a comprehensive system of amendments,would negate the advantages of secondary legislation'",whereas a limited system,would be difficult to justify".In that connection, it occurred to me to look at the instructive case of the Welsh Assembly which, as noble Lords know, in its legislative activity deals only with secondary legislation. It is well worth perusing the Official Record of the National Assembly for Wales. It is also quite enjoyable. Debates are pleasingly informal, as when the Presiding Officer interrupts a speaker and says, "Please do not make the same speech as you made earlier, Geraint!" With respect to the equivalent of statutory instruments in the Assembly, the Secretary responsible—say, the Secretary for Health and Social Services—introduces an order after it has been considered in draft by the Legislation Committee.
The Assembly is then invited to go through the following stages: first, to consider the report of the committee; secondly, to approve the principle of the order; thirdly, to consider, approve or reject amendments; and, finally, to approve the order. Frequently, that is an uncontroversial and rapid process. However, on 22nd March this year, for example, an order concerning NHS charges had a narrow majority on the question of principle: 25 Members voted for, 22 voted against and there were four abstentions. Abstentions are listed in all cases. An amendment was then debated with one speaker for and one against, as allowed by Standing Orders. It was rejected by a similar majority. In the end, 26 Assembly Members voted for the order and 24 against, with four abstentions. In other words, the Welsh Assembly has found a way of debating and, if the majority so wish, amending secondary legislation. It has done so without encountering the problems suggested by the Wakeham report. Can we learn from it?
No doubt it will be pointed out that there is a difference between a Secretary of State who promulgates instruments and an elected Parliament which makes laws. However, I believe that, as a minimum, Parliament must find a way of expressing its view on the conditions under which a statutory instrument would be acceptable. Admittedly, the absolute veto is a clumsy method to this end, especially if Parliament wishes to add something, as in the case of the freepost for the London mayoral elections, and has to reject an otherwise acceptable order to make its point.
The Wakeham commission suggests an alternative process which is, however, very elaborate; that is, consideration of drafts, sifting of instruments, possibly 819 consultation, and eventually exercising the new power of delay, coupled with a request for an explanatory memorandum. Apparent loss of power in this regard would not worry me unduly. However, I cannot help feeling that the Welsh Assembly has found a more elegant method. At the very least, the exercise of the delaying power should be accompanied by a resolution which specifies the conditions under which a statutory instrument would be acceptable. Here I find myself in an identical position to that of the noble Lord, Lord Peston.
Other measures could be added (and might be worth discussing on another occasion) to make the scrutiny of statutory instruments more effective and also in some ways more predictable. In a sense, the Delegated Powers and Deregulation Committee is developing case law for what must be in primary legislation and what, at any rate, must be subject to affirmative procedure. When the noble and learned Lord, Lord Archer of Sandwell, was a member of the committee, he insisted that, as a rule, the creation of quasi-judicial institutions and sanctions should not be done by statutory instrument. A set of such principles might well be a useful guide for legislation.
Those are urgent questions. The Royal Commission may well be right that they can be dealt with by amending the Statutory Instruments Act 1946. However, the relevance goes much deeper: it has to do with the future of Parliament in our democracy, no less.
§ 3.47 p.m.
§ Lord Campbell of Alloway
My Lords, it is a rare privilege to be able to speak in this debate and to follow the noble Lords who have already spoken, and in particular my noble friend Lord Dean of Harptree. I congratulate him on his wholly constructive speech. For once, I am able to agree with everything that the noble Lord, Lord Peston, has said. I agree wholly with him that the time is right for a full-scale debate; it should already have taken place. We must get on with it now.
I agree with the noble Lord that there must be a preconsideration of statutory instruments. Some time ago I served—I believe that I still serve—on the Statutory Instruments Committee. However, that committee is limited to vires. It is also sometimes limited to commenting that matters have been dealt with in an unusual situation. It says no more than that; it does not comment on merit or anything of that order. However, I believe that that is the way forward and would represent an important development. Again, I agree with the five principles, so neatly arranged and expounded by my noble friend Lord Alexander of Weedon.
The Royal Commission is to be congratulated on the intrinsic worth of the recommendations concerned with the workings of this House, such as our procedures, conventions and the setting up of committees, on which there was unanimity. It is totally plain from the manner in which such recommendations were expressed—and I am glad to be able to say this in 820 the presence of my noble friend Lord Wakeham—that such matters should receive the appraisal of your Lordships with a view to implementation before the second stage of substantive reform, if such be the wish of the House.
One such matter—and it is only one—is the procedure by which this House may exercise its function to contain the misuse of executive power by resort to secondary legislation. I shall return to that later but the Government wish to defer consideration on that until the second stage of legislative reform. So there is a clear issue between what could be the sense of the House and what would be the will of the Government.
There can be no second-stage legislation until the question of composition—the stumbling block—on which the Royal Commission was not unanimous can be resolved by Parliament. However, the Royal Commission could not have contemplated that such a matter of our own domestic procedures should lack any consideration for such a long, uncertain period of time. There could be no such assurance. The Royal Commission could not have contemplated, of course, that every recommendation as to the workings of this House should receive immediate consideration with a view to implementation unless such were the wish of the House.
The object of the debate is to commend but one such recommendation to your Lordships for immediate consideration. Noble Lords will be grateful to my noble friend Lord Dean for having introduced this debate. The opportunity is indeed welcome. There is not now and never has been any commitment by government to seek the approval of Parliament for any recommendation in the report, albeit that the reappraisal of our procedures is not a matter for Parliament; it is not a matter for government; it is a matter for this House.
It was apparent from the debate on the report that the Government are no longer prepared to set up a Joint Committee of both Houses to consider proposals for substantive reform. One is left with the impression that the Government are not prepared to entertain any reappraisal of our procedures. The current attitude of government in that context, as concerns the power to delay secondary legislation and the Salisbury Convention, which cuts upon that problem, has been evinced on many occasions at Question Time. That is referred to at pages 21 to 23 of the Library Notes. Those are the Questions with which I was involved, asking that action should be taken.
The attitude evinced by the Government has always been: wait for substantive reform which must, inevitably, comprise the composition. Other excuses for inertia have been made; for example, that there should be no cherry-picking.
Whereas the Salisbury doctrine has not been defined or recorded in the Companion or Erskine May. the exercise of restraint to vote against secondary legislation has been recorded at page 187 of the Companion. But the entitlement to reject secondary legislation was affirmed in the benchmark debate of 821 the noble and learned Lord, Lord Simon of Glaisdale, whose Motion was agreed to, and the entitlement was acknowledged by the Royal Commission at paragraph 7.39 of its report.
It is not the purpose of this speech to canvass the merits of any particular approach. That is a matter for the consideration of the constitutional committee which, it is hoped, will soon be set up in accordance with the key Recommendation 21 of the Royal Commission, or perhaps by the Procedure Committee or the Liaison Committee, if that constitutional committee is not established.
At all events, critical amendments and Motions are dealt with at page 187 of the Companion, which relates to Motions not challenging the delegated legislation, or a Motion to invite the Government to amend delegated legislation on which there is no Division, or a Motion regretting some element of delegated legislation which, if carried, has no practical effect but only serves to record a point of view. This will, on any showing, require very substantial amendment, and it requires that now; that is, if this House is to fulfil its function to exercise effective control over the executive.
An example of such abuse of power was to seek by order to treat the Greater London Authority as a local government authority when no such principle had been established in primary legislation.
The question of the exercise of self-restraint is considered in the Royal Commission report at paragraphs 7.31 to 7.38 and at Recommendations 41 and 43. Those advocate a suspensory veto which goes some way to meet the problem. At Question Time on 7th December, I suggested that a new convention should be introduced under which your Lordships' House, on a Division, could move to request another place to delay the instrument in some amended form which, if not relaid in a form acceptable to this House, could then be rejected. That goes some way to meet the proposal of my noble friend Lord Strathclyde that statutory instruments should be amendable.
Taking into account the criteria of the Salisbury doctrine, the noble and learned Lord, Lord Simon of Glaisdale, pointed out that, during the 1970s, both parties in opposition voted against statutory instruments. In that debate the noble and learned Lord pointed out also that the suggested rule of longstanding practice did not exist and the suggested convention not to reject statutory legislation entirely failed.
It is accepted that, under extant procedures of the House, we cannot amend or suggest amendments to secondary legislation. As a general practice, restraint should be exercised as regards rejection. But, where the Government resort to secondary legislation on a matter of principle, for the sake of administrative convenience as distinct from the implementation of the principle already enshrined in primary legislation, rejection is the only means available to restrain an abuse of power.
822 I very much like the proposal put forward by the noble Lord, Lord Peston, that, first, we should have the formal power to delay, indicating the form of amendment that we would want; secondly, that, if that were rejected, there should be a reasoned response; and, thirdly, that a new regime along those lines should be introduced so that we can avoid ping-pong.
So far, the Government's attitude has been contradictory. On the one hand, it is asserted that it is the function of the House to hold the executive to account. On the other hand, it is asserted that the right to reject secondary legislation either does not exist or ought not to be exercised. That is a somewhat neuronic approach. The hope is that the House will soon take the matter into its own hands.
§ 4.1 p.m.
§ Lord Simon of Glaisdale
My Lords, I am most glad to follow the noble Lord, Lord Campbell of Alloway, not least in joining him and other noble Lords in expressing gratitude to the noble Lord, Lord Dean of Harptree, who has once again put us all in his debt. That is so partly because he initiated the discussion and partly because his speech set the tone of what, with respect, seems to me to be an exceptionally constructive debate.
Furthermore, those of us who did not take part in the wider-ranging debate are enabled to pay our tribute to the Royal Commission. Even when one ventures to differ from a proposal, as I venture to do as regards the power to delay, one must recognise the masterly discussion in Chapter 7 on the whole issue of subordinate legislation.
Normally, secondary legislation does not throw up any problems when it is merely the "nuts and bolts", to adopt the phrase used by the late Bob Cryer, a greatly admired chairman of the Joint Select Committee. Adjusting the nuts and bolts, the final adjustment of the machine, does no more than to complete what should be clearly laid down in a blueprint in the primary legislation. Nevertheless, occasionally, secondary legislation goes beyond that. Sometimes that is due to the executive trying it on; sometimes, unexpectedly, a major matter is thrown up.
In the discussion in 1994, the noble Lord, Lord Rodgers of Quarry Bank, pointed out that the local government orders were such a matter on which your Lordships would be fully entitled to exercise their prerogative—indeed, responsibility—of voting, if thought right, against an order. Then there is the occasional secondary legislation which is reported by the Joint Select Committee as being unusual and unexpected. I hope that the noble Lord, Lord Mackay, will excuse me if I remind him of the unlamented Child Support Act, which was a skeleton Bill. It went so far wrong that the Government introduced an order under power to make transitory provision which altered the right retrospectively that had already accrued under the main Act. A government will always be tempted to do that when they get into a mess, even if they are an aggrandising government.
823 There will be cases in which your Lordships will want to exercise the responsibility that was clearly claimed in 1994. As the noble Lord, Lord Dean, pointed out, we had a recent example in relation to the mailshots in the London mayoral election. That was perceived by your Lordships as going far beyond the nuts and bolts. It was a question of democracy—the right of an electorate to be fully and accurately informed as to the issues on which it was called upon to choose. That was important as showing that the 1994 resolution, although it would rarely be needed if only because it made government departments much more careful, nevertheless could be used when a major issue transpired.
Before turning to the question of the three months' delay which the Royal Commission recommends as being the power that your Lordships should have in voting against subordinate legislation, perhaps I may first mention the question of amendment. Like most people who have been occupied with the problem—as I have, I confess, for decades, merely on the ground of old age—I am attracted by the logic of allowing parliamentary amendment of subordinate legislation. I agree with the Royal Commission in finally negativing that. First, it is certain that we would never get it from the executive. Secondly, there is a good reason for that; it would negative the advantages of subordinate legislation which are so clearly set out by the Royal Commission.
As regards the three months' delay, it is with trepidation that I find myself differing from the Royal Commission and from the noble Lords, Lord Alexander of Weedon and Lord Campbell of Alloway. In my view, it gives both too much and too little. It gives too much because the Government might sometimes be up against a timetable, as they were on the mailshot issue. Even if that were the case, a three-months' delay takes the matter out of the hands of the Government in the other place and asserts our supremacy. On the other hand, it also gives too little. Again, in the ordinary case where there is no timetable, an obstinate government—and after all, all governments are obstinate—will sit out three months' delay without any real difficulty.
We sometimes thoughtlessly use the phrase "asking the other place to think again". The recent vote on sex education in schools is another example of how unreal that phrase is. First, the other place does not collectively sit down and excogitate the issue from the beginning in the fight of the debate in your Lordships' House. Secondly, what happened immediately after the vote on sex education showed that the concept of the Government "thinking again" is quite unreal. What they do is to try to get away with as much as they can, as do any government.
Therefore, with great trepidation I should not agree with the proposal for a three-month delay. We have what we want in a sense through our present powers and they way that they are used. I venture to be greatly attracted by the suggestion of the noble Lord, Lord Peston, which has been taken up by other noble Lords; that in effect amendments can be proposed in debate. The noble Earl, Lord Russell, whose absence we feel today, has developed such a technique. We do not 824 really need the three-month delay. We have all the power that we need under the present regime. I merely add that we are at a crisis of the constitution, because we are rewriting the constitution. In the end, there is the question of parliamentary government or executive government.
We are privileged that the noble and learned Lord, Lord Falconer, is to reply to the debate. He sits in the very control chamber of the powerhouse of a commanding and aggrandising central and centralising government. I hope that he will reassure us that those of us who celebrated the Glorious Revolution a decade ago can still glory in it. We gloried in it because it vindicated parliamentary government as against executive government. I trust that we may continue to do so.
§ 4.13 p.m.
§ Lord Barnett
My Lords, I certainly agree with the noble and learned Lord's final words. I add my congratulations to the noble Lord, Lord Dean of Harptree, on introducing this extremely important debate.
The question is: should this interim House have those powers of delay? As the Motion refers to the Royal Commission chaired by the noble Lord, Lord Wakeham, I suggested to him that he might care to stay to hear what I have to say because I hate to be even mildly controversial, but I propose to be so as regards his commission. The Motion refers to the commission, but, frankly, it did not need to because the commission is irrelevant to this debate.
As the commission was chaired by such a nice noble Lord as the noble Lord, Lord Wakeham—I know from my experience of another place and here that he is an extremely nice man—it never had a chance of producing anything other than a useless report. That was shown when he was given as vice-chairman Gerald Kaufman. It was quite impossible to produce a unanimous report of any kind with Gerald Kaufman on the commission, but the noble Lord managed it, with three variations included. Those three variations are about the worst part of the report so I shall not refer to them too much, but the report itself and those three recommendations or options would produce a hybrid House. That would certainly be even worse than this interim House.
I have no reason to want to see the Wakeham commission report introduced into this debate. This House itself is far from ideal. It is supposedly called an "interim House". If it were an ideal House I should not be in it. It would be a wholly elected House. I know that the noble Lord would not like it, but it has something to do with democracy. The idea of a democracy is that there should be two elected Chambers. I see the noble Lord, Lord Wakeham, shaking his head. He must have started off doing that in his impartial way when he began discussing the issue.
The plain fact is that in an elected second Chamber, of course, one would not have such nice people as ill of us. Some of the Members would not be very good.
825 The other place has 650 honourable and right honourable Members. Is anyone suggesting that they are all nice, decent, good Members of Parliament? Of course not. In an elected Chamber one does not always get nice people. One gets some difficult ones; and what is wrong with that? There is nothing wrong with having difficult Members in a Chamber. But we have now an interim Chamber for better or worse.
It has been suggested, including in this debate, that we must have lawyers and the independent Cross-Benchers. I shall not dwell on that point, because if anyone cares to consider the independence of Cross-Benchers, it will be found that they are anything but. Some of them should be sitting on the Benches opposite, as I have told them from time to time, except that they would probably find that there is not anything Right-wing enough for them there. There is no reason whatever why we should have all those professionals, Bishops and other religious leaders. If we want to take advice from such people, we can do so. They do not need to be Members of your Lordships' House at all. But I digress. I do so only because I wanted to upset the noble Lord, Lord Wakeham, a little. I see that I am not even doing that.
§ Lord Wakeham
My Lords, I did not want to intervene to stop the noble Lord, but I should have thought that he has known me for long enough to know that he has to try a good deal harder before he upsets me!
§ Lord Barnett
My Lords, that is why I asked the noble Lord to stay. I knew that he would not be too upset.
If, as I see from the nodding and shaking of heads around the Chamber, noble Lords do not want an elected second Chamber, it is much better that we have a nominated one—nominated in whatever way noble Lords would like. That would be better than a hybrid House as recommended by the noble Lord, Lord Wakeham.
The problem of the powers, if one had an elected or even a new second Chamber, is important. Everyone agrees that the other place must be paramount. I agree with that view. Recently, I referred to something that the Leader of the Opposition, the noble Lord, Lord Strathclyde, was quoted as having said—I am not sure whether it was true: he was going to be bolshy and ignore the Salisbury Convention. When I said that to him, he both nodded and shook his head, so I was not clear what he was saying. No doubt his Deputy Leader will tell us.
The Salisbury Convention is just that—a convention. If we have a new Chamber or this Chamber is strengthened in some way, we should entrench the Salisbury Convention in legislation and stop talking about conventions. That could be done to limit the powers of this Chamber, so allowing the other place to be paramount. At the moment, we have this so-called interim House. I agree with those who have said that we should be able to make the government of the day think again in relation to secondary legislation.
826 I entirely agree with everything that has been said on that subject, and we do not need to wait to do it. It can be done now. My noble friend Lord Peston, in his customary wise way, said that it should be done only once: we should not be playing ping-pong with the other place and with the Government. In that way we diminish the responsibility, the powers and the respect in which the House is held, and so I hope that if we do take these powers it would be to use them just once.
As I have said, one does not need to worry too much about the Wakeham commission report, because its recommendations will not be implemented. The noble Lord knows that: he is smiling now, but he knows very well they will not. Can you imagine that if this Government were re-elected and at the start of a new Parliament the then Prime Minister—the present one, I assume—would have as a high priority instituting a new major piece of constitutional legislation? One has to be joking. It will not happen. This interim House is going to last for rather a long period of time, in my view.
The Wakeham commission report, from which this Motion has taken some recommendations, got it right in this respect. That is not too surprising. Out of 132 recommendations it would be astonishing if it had not got one or two right—and it did—but we are told that we should not cherrypick from the report. Why should we not? In any case we are not even talking of the Wakeham commission recommendations: these are the ones that my noble friend Lord Peston and I set out to them in our evidence. So this really could be said to be our evidence. The plain fact is that there is absolutely no reason whatsoever why one should not cherrypick at least one or two of the good points in the report.
Let me revert to the Motion. My noble friend Lord Peston agreed with what we submitted in evidence at the time: that we should seek to allow secondary legislation both to be voted on in your Lordships' House and to be amended. He had doubts about the amending part. He has not discussed this with me—to my regret, and I will talk to him about that later. The reason that he gave is quite a good one, actually: despite all our brilliant legal minds and great parliamentary minds, we are not well equipped to draft amending legislation. We should therefore simply throw it out and let the government of the day do the necessary work. I agree with him on that. There is no harm in doing it that way, but it is important that the interim House should have those powers because, as I say, we are going to last a long time and so there is no need to wait.
The noble Lord, Lord Dean of Harptree, asked the Minister to give it a fair wind. I hope he does so but, frankly, it does not matter. It is not a matter for the Government. We should remind ourselves that we in your Lordships' House are in command of our own rules. It would be nice if he gave it a fair wind but, frankly, if he, the usual channels and the authorities of the House decide that we should not have it, that has nothing to do with it. We are in charge—we, the Members of your Lordships' House—and if they do not like it, that is just too bad. So I say to my noble and learned friend Lord Falconer, of whom I am very fond, 827 as he knows—just as I am of the noble Lord, Lord Wakeham—that I hope he will give it a fair wind. It is a very sensible suggestion that these powers should be taken by your Lordships' House. At the same time I hope that your Lordships will remember that it is not for them to decide. We can decide, and should.
§ 4.23 p.m.
§ Lord Norton of Louth
My Lords, I, too, welcome this debate and join with others on congratulating my noble friend Lo rd Dean of Harptree on initiating it. Indeed I commend my noble friend on his persistence in returning to this extremely important matter. I think I now know how one of my students feels at the end of a seminar, saying that, "Everything I wanted to say has already been sail". Where I differ from the student is that I intend to carry on!
Before get to the meat of what I should like to say, I just want to respond to the noble Lord, Lord Barnett, who provokes me with his opening comments about democracy. I disagree with him. He is taking one particular definition of democracy. He is defining it solely in terms of process: that is, election. If you define democracy as the translation of the wishes of the electors into legislative output, then you come up with a very different form of parliament. I think that is a preferable definition and it also entails looking at Parliament in a holistic manner, and not simply concentrating on this Chamber.
I now turn to the heart of the debate itself. This is, as the noble Lord, Lord Dahrendorf, has said, a very important debate because in looking at delegated legislation we are addressing a problem of Parliament, not a problem of the House of Lords. It is quite possible to move forward on this issue without impinging on the wider debate about the shape of the upper House.
The upper House, whatever form it takes, should join with the other place in subjecting delegated legislation to effective scrutiny. That there is a need for the effective serutiny of delegated legislation cannot be doubted. The phenomenal growth in the volume of statutory instruments has already been mentioned and has been recorded by a range of authoritative bodies. It was noted by the Hansard Society Commission on the Legislative Process in 1992, by the Procedure Committee of the House of Commons in 1996 and now by the Royal Commission. All three bodies agree that the means of parliamentary scrutiny are inadequate for the task. Each makes recommendations for strengthening scrutiny.
The report of the Commons Procedure Committee on Delegated Legislation in 1996 was a powerful document in favour of reform. I should perhaps declare an interest in that I was one of the five witnesses to give oral evidence to the committee. The committee offered 18 recommendations, the most significant of which are mentioned in the report of the Wakeham commission and have been touched upon already by several speakers.
828 It recommended a new category of "super affirmative" instruments. It favoured the creation of a new sifting committee to decide which negative instruments merited debate. The sifting committee was to look at statutory instruments in the context of political importance, thus distinguishing it from the work of the Joint Committee on Statutory Instruments, which of course is concerned with the technical merits. It also recommended a point that was touched upon by my noble friend Lord Alexander of Weedon that the "praying time" in respect of negative resolution instruments should be extended from 40 to 60 days, and that debates in the Standing Committee on Statutory Instruments take place on substantive Motions.
The committee's report makes an excellent case for these recommendations. The Royal Commission in effect makes similar recommendations for your Lordships' House. Indeed, as the commission records on page 72,our proposals are very much in line with the spirit of the Procedure Committee's report".It goes on to say that the two could be considered in parallel. This, I think, is a crucial point. As I have mentioned, it is not a case of looking at the problem purely from the perspective of your Lordships' House. It has to be considered in a holistic manner; that is, from the perspective of Parliament. Indeed this is intrinsic to the recommendations of the Royal Commission. It favours a joint sifting committee. As it argues, a Joint Committee ensures consistency of approach and avoids duplication of staff effort. I endorse that recommendation. As an alternative to a Joint Committee, as my noble friend Lord Alexander of Weedon has mentioned, it recommends the House establishing its own procedure, perhaps employing the Delegated Powers and Deregulation Committee for the purpose. Like my noble friend, and for the reasons given by the Royal Commission, I favour a Joint Committee.
The Royal Commission offers a well argued case for reform and is highly persuasive. I believe that the case for action is overwhelming. However, like several other noble Lords, I would qualify my endorsement of that in two respects. The first is in respect of its conclusion that there is no case for making it possible to amend statutory instruments once they have been formally laid before Parliament. Like the noble Lord, Lord Peston, I recognise the difficulties of permitting amendment by Parliament. In large measure, as the noble and learned Lord, Lord Simon of Glaisdale, mentioned, it undermines the case for having delegated legislation and this point was well recognised by the Commons Procedure Committee in its report.
However, there is a case for Parliament being able to persuade government to withdraw and reintroduce a statutory instrument that is clearly flawed. The Procedure Committee effectively squared the circle by recommending that it be possible for conditional amendments to be moved in a Standing Committee on Statutory Instruments. It would then be open to the Government to withdraw and re-lay the instrument, 829 with some regard to the terms of the amendments agreed in Committee; alternatively, it could of course seek the formal approval of the House to the unamended instrument. It would also be possible, under its recommendations, to move conditional amendments on the Floor of the House. If passed, it would then be open to the Government to withdraw and re-lay the instrument. Technically, the House does not amend the instrument, but in effect it is inducing the Government to amend it. That, I think, is the way to proceed, and I recommend that your Lordships' House should adopt a similar approach.
I differ also from the Royal Commission in its recommendation that the powers of this House be limited in respect of delegated legislation. The limited powers it recommends would, I think, be too much of an encouragement for the Government simply to employ their majority in the House of Commons to override any vote in your Lordships' House to reject a draft instrument or to annul an instrument. I believe that the existing powers are adequate. Delegated legislation is not analogous to primary legislation, simply by definition. Not only can the Government relay an instrument; they can, if your Lordships' House continues to reject it, embody it in primary legislation and thus, ultimately, ensure its passage under the provisions of the Parliament Act. That fact is recognised by the Royal Commission, but it makes the point in suggesting that the existing absolute veto power is more apparent than real. However, in that respect, I disagree with the Royal Commission. Introducing legislation to give effect to a rejected instrument is time consuming, eats into the Government's legislative programme and, of course, if the House rejects the legislation, entails a delay of one year. That prospect gives the House much more leverage than the capacity to delay an instrument for three months.
Furthermore, I believe that this House is perfectly entitled to use its power to annul an instrument. The reasons for that are twofold; one is present and one is prospective. First, delegated legislation is designed to provide a means to an end. The ends are stipulated, or should be stipulated, in the primary legislation. We are not therefore dealing with matters that are likely to be embodied in a manifesto or the Government's programme for the Session.
Secondly—this is the prospective reason—the proposed method of scrutiny that I have outlined gives greater legitimacy to the use of the power. If a sifting committee has recommended that an instrument be annulled or has passed a conditional amendment that the Government have not heeded, then the House will expect a full justification from the Government. If that is not forthcoming, I think that the House would have perfectly valid grounds for rejecting the instrument. Of course, if the system is working well, the House should not need to use the power, but I think that the power needs to be there.
These are important qualifications. However, the essential point for the purpose of today's debate is that the Royal Commission has endorsed the view of 830 previous bodies that action is needed to strengthen Parliament in its scrutiny of delegated legislation. The key word here is Parliament. We are not discussing something that is part and parcel of the debate about reform of the upper House. We are discussing a problem that faces Parliament. Both Houses should act, and should do so as a matter of urgency.
§ 4.33 p.m.
§ Lord Goodhart
My Lords, I am most grateful to the noble Lord, Lord Dean of Harptree, for introducing this debate on an important subject which the events of 22nd February have made even more important than they were before. When, as a novice, I joined the Delegated Powers and Deregulation Committee, I learnt much from the experience and wisdom of the noble Lord.
However, I agree with the noble Lord, Lord Peston, that, useful though this debate has been, it is no substitute for a full debate on the role of the interim House. That, I believe, is a debate that we should have and I am sorry that the Leader of the House is not in her place today to listen to our debate. I hope that she will take the opportunity of reading the report in Hansard very carefully.
The power of your Lordships' House to reject secondary legislation emerged like a tiger from its lair on 18th June 1968 when this House narrowly rejected the Southern Rhodesia (United Nations Sanctions) Order. That vote was seen to create a constitutional crisis. It brought to an end the cross-party discussions on the reform of your Lordships' House that were proceeding at the time. The government announced their intention to introduce legislation to reduce the powers of your Lordships' House—an intention which somehow they never got around to implementing. The order, in a slightly varied form, was relaid and approved by your Lordships' House a month later, on 18th July. The tiger returned to its lair, where it snarled from time to time.
The procedural device of a non-fatal amendment was invented. The extremely useful Library Notes on this subject tell us that a non-fatal amendment was passed eight times between 1977 and 1998. During that period there were also some direct challenges to orders, but none of them was successful.
On 20th October 1994, the noble and learned Lord, Lord Simon of Glaisdale—whom I am very glad to see has once again participated in the debate today—persuaded your Lordships' House that there was no convention which prevented it from exercising a power to reject secondary legislation. That, of course, has always been the view of these Benches.
On 22nd February his year, the tiger emerged from its lair for a second time and savaged the London election rules because they did not provide for a freepost. This time there was no constitutional crisis. The Government negotiated on the subject and returned with an amendment to the Representation of the People Bill to allow a freepost for the mayoral election. On this occasion, your Lordships' House was acting not to protect, as in 1968, a white minority 831 government in S Duthem Rhodesia, but to protect the democratic rights of the electors of London. That forms the background to today's debate.
I believe that fie right to reject secondary legislation is a very powerful weapon in the hands of your Lordships' House. It is so powerful that it must be exercised with very great care and restraint. I shall not try to suggest any specific rules for this; it would take far too long in our debate this afternoon and others could do it much better than I. However, the power should not be used, in particular, to block the implementation of an Act if the principles being implemented were fully debated in Parliament during the passage of that Act.
For example, under the Access to Justice Act 1999, there were many aspects of the funding code for the Community Legal Service to which we on these Benches strongly objected. But those issues had been fully debated during the passage of the Bill and it would not have been right to challenge the order for approval of the funding code. When the order came forward, I appeared in this House merely to criticise it, but not to make any attempt to revoke it.
However, if the circumstances justify the exercise of a power to reject secondary legislation, then I believe that it is the right and duty of your Lordships' House to exercise that power. The attempt to lay down rules for the mayoral election without a freepost was plainly such a case.
The trouble with the proposals in Chapter 7 of the report of the Royal Commission is that it entirely destroys this vital power of your Lordships' House. Under Recommendations 41 and 42 of the report, any order rejected by your Lordships' House can nevertheless take effect if confirmed in the other place within three months. I emphasise the word "within", rather than at the end of three months. The effect of this would have been that when your Lordships' House threw out the London election rules, those rules would have been voted on again within a matter of a few days in another place. They would have taken effect without any amendment and there would have been no freepost.
I have to say that when I first read Chapter 7, I assumed that these proposals were intended to work the other way around. I thought that they meant that the other place could force an order through after a delay of three months, and I believe that, judging from his speech, that is what the noble and learned Lord, Lord Simon of Glaisdale, also thought. I then re-read the chapter and discovered that I had misunderstood what was said in the report; namely, that three months was the end of the time within which the other place could confirm the original order, not the start of that time. Let me refer to Recommendation 41, which states:Where the second chamber votes against a draft instrument, the draft should nevertheless be deemed to be approved if the House of Commons subsequently gives (or, as the case may be, reaffirms) its approval within three months".
§ Lord Peston
My Lords, I am not sure that the noble Lord is referring to the right recommendation when he comments on Recommendation 41 rather than Recommendation 42. There is a distinction between draft secondary legislation and what I take to be full secondary legislation.
§ Lord Goodhart
No, my Lords. Recommendation 41 refers to the affirmative resolution procedure; Recommendation 42 refers to the negative procedure. Recommendation 42 is less clear. It states:the annulment should not take effect for three months and could be overridden by a resolution of the House of Commons".But I take it that that annulment is intended to operate only within that three month period. I am sorry to have to say this in the presence of the noble Lord, Lord Wakeham, but I find that particular proposal both extraordinary and indefensible.
There is a case for reducing power over statutory instruments from absolute veto to power to delay for a period of, say, one year, in line with our powers over primary legislation. However, there are arguments the other way for saying that, if the Government want to override the veto of your Lordships' House, they should do so by primary legislation. I can see no arguments for the proposal as it stands in Chapter 7.
There are a number of good things in that chapter. I agree with Recommendation 35, that there should be, as many noble Lords have said, more parliamentary scrutiny of secondary legislation and that your Lordships' House should make a strong contribution to that scrutiny. I agree with Recommendation 36, that particularly significant statutory instruments should be published in draft for consultation before being laid before Parliament. To a considerable extent that is already happening, especially where statutory instruments are intended to implement new primary legislation and are published for consultation while that legislation is passing through Parliament. I agree with Recommendations 37 and 38, for a sifting mechanism to look at the significance of statutory instruments and to draw attention to those which merit debate.
I regret the report's conclusion that there is no case for making it possible to amend statutory instruments once they are laid before Parliament. I agree with the noble Lord, Lord Peston, that there should be no general power to allow amendment of statutory instruments—that would defeat the purpose of getting them through Parliament relatively quickly and efficiently—but there is much to be said for the proposal of the noble Lord, Lord Norton of Louth, to permit conditional amendments to statutory instruments in order that your Lordships' House could reject the statutory instrument but explain the terms on which it would consent to it if re-laid.
Going beyond that, in the relatively short time that I have been a Member of your Lordships' House, I have become increasingly convinced that there is a need for a kind of legislation which is intermediate between the affirmative resolution procedure and primary legislation. That would perhaps be similar to the 833 super-affirmative statutory instrument discussed by the noble Lord, Lord Alexander of Weedon, in his constructive and thoughtful speech.
The affirmative resolution procedure we now have excludes amendments and usually means no more than 20 minutes of debate in the dinner hour or at the end of the day's business. Primary legislation, by contrast, involves the whole panoply of Second Reading, Committee stage, Report stage and Third Reading—and the allocation of the Committee stage to the Moses Room in some cases does little to shorten the procedure. The Jellicoe procedure appears to have been totally abandoned. An intermediate procedure would be appropriate both for particularly important statutory instruments and for minor and uncontroversial Bills, such as many of the Law Commission Bills.
As I have made clear, I disagree strongly with Recommendations 41 and 42. The report was published before your Lordships' House rejected the London election rules. The report assumes in paragraph 7.11 that there was a convention that your Lordships' House did not reject statutory instruments. Maybe now the authors of the report would say something different. Be that as it may, we on these Benches will fight as strongly as we can to preserve the unfettered right of your Lordships' House to reject secondary legislation.
§ 4.45 p.m.
§ Lord Mackay of Ardbrecknish
My Lords, we have had a very useful and interesting debate on the immensely important issue of secondary legislation. As all noble Lords who have spoken have said, we are deeply grateful to my noble friend Lord Dean of Harptree for introducing it.
I have reminded the House on a number of occasions that, although it is a long time ago, I was one of the founder members of the Delegated Powers Scrutiny Committee, as it was initially called. After a very short membership, I was whisked off to the Government. I then became a gamekeeper after being a poacher—or perhaps it was the other way round; I am not sure. I certainly noticed the reminder of the noble and learned Lord, Lord Simon of Glaisdale, about the Child Support Agency and the secondary legislation that surrounded it. Clearly my spell on the Delegated Powers Scrutiny Committee did not do me as much good as it should have.
The truth is that all governments tend to produce skeleton Bills, or parts of Bills, which allow Ministers—or, more truthfully, civil servants—to draw up the rules later. Indeed, it should be not only the opposition parties and government Back-Benchers but Ministers themselves who should want to reduce what is, in reality, legislation by officials. Parliament in theory sets out the principles, but it is in government departments that the rule books are written—rule books which can close shops, slaughterhouses and schools; which can pile costs and bureaucracy on business; and which can put jobs at risk in areas such as, if I may take a random example, the pig industry.
834 There is cross-party agreement that this development needs to be checked. Over time, there have of course been steps taken to deal with affirmative, negative and general instruments. Parliament has tried to build up its defences against the abuse of secondary power. We have had the Commons Standing Committee on Delegated Legislation, the Joint Committee on Statutory Instruments, and now we have in your Lordships' House the Delegated Powers and Deregulation Committee. These institutions are useful. In particular, your Lordships' Delegated Powers and Deregulation Committee does an outstanding job in drawing attention to attempts by government to push secondary powers too far and to evade scrutiny on the face of legislation.
All governments have so far heeded notes of the Delegated Powers and Deregulation Committee. There was a recent unwise attempt by the noble Lord. Lord Bassam of Brighton, to tough it out on proceedings at general elections, but wisdom overtook the Government and the noble Lord brought forward amendments to agree with the Delegated Powers and Deregulation Committee. That is quite right. At the risk of incurring, perhaps not the wrath of but a row from the noble Lord, Lord Barnett, I venture to suggest that advice from this committee is on the way to becoming a convention of the way we deal with legislation. We in this House and in the other place should expect obedience from all governments to the recommendations of the committee.
Despite these checks, problems abound. If I can remind the House, the Pollution Control Act was, in its original form, the worst example of a skeleton Bill ever to come to the House. Now we have a growing swathe of late amendments to big Bills, some of which contain enabling powers. The Delegated Powers and Deregulation Committee commented on this in its 10th report. In regard to the government amendments at the Committee stage of the Financial Services Bill, it stated:the increasing speed with which the Committee is being asked to work … may on occasion mean that the Committee's report on amendments is published after the House has considered the amendments".Clearly that is not a satisfactory position, especially if the amendments contain Henry VIII type secondary powers.
We are increasingly under pressure of time and weight of legislation. There is a weakness in the other place in the scrutiny of legislation. Your Lordships need only read dare I say it—the Committee stages of Bills before they come here. They may sometimes occasion a laugh but they do not occasion much wisdom. There is also the sheer weight of legislation. The 1997–98 Session was the longest in history. In this Session we have a huge programme of Bills—the fullest programme that many can remember. And we have a huge number of late amendments: 1,000 to the GLA Bill; 500 to the Local Government Bill; and some 600, I understand, to the Financial Services and Markets Bill. Those are all problems which beset this 835 Government as they beset to an extent the last government. We have to try to find a way to deal with them, and in particular secondary legislation.
Running through the debate has been reference to the report of the Royal Commission chaired by my noble friend Lord Wakeham, whom I am pleased to see in his place. Most noble Lords made reference to Chapter 7 of the report on secondary legislation. I agree with many of the recommendations in that chapter. I agree with noble Lords, in particular the noble Lord, Lord Barnett, who said that we could move ahead now with some of the recommendations. The sifting committee proposal in Recommendations 37 and 38 has met with approval around the House and could be introduced. I have some reservations. I shall come to my principal reservation on Chapter 7 later.
We all agree that secondary legislation is not open to sufficient scrutiny. We need to discuss it perhaps more often. Do we, or do we not, need to be able to amend it? We need to be able if we wish, and on rare occasions, to reject it.
Better accountability not only involves your Lordships and Members of the other place having a close look at secondary legislation but also must involve us lining with outside bodies and organisations which will be affected by the detail of it. My noble friend Lord Alexander of Weedon spoke about that issue.
I was surprised that your Lordships dwelt largely on secondary legislation brought in after—sometimes a long time after—the primary legislation on which it was based. At this stage, perhaps I may throw into the pot consideration of what we do about the powers in the primary legislation as it goes through your Lordships' House. I have a few suggestions. Where important regulations are to be brought in under a Bill, draft regulations should be available to the House before the Committee stage. In a properly planned world that should be possible. Ministers should give as much attention to the small print as to the soundbites of law making. It is the small print that makes or breaks businesses and jobs.
If draft regulations are not available, either House should be increasingly reluctant to proceed to Committee stage or should declare its right to reject outright late presented regulations. Where draft regulations are presented after Committee or secondary powers added into a Bill after Committee, that part of the Bill should normally be recommitted so that we can have a Committee-type discussion and not a Report-type, or, even worse, a Third Reading-type, of discussion.
In some circumstances it might be sensible to lay the draft regulations as amending schedules to the Bill. Your Lordships may remember that for a variety of reasons I suggested this to the Government in the Referendums (Scotland and Wales) Bill in the summer of 1997. Indeed, the Government took that on board. Therefore while the Bill was still going through as primary legislation, we were able to discuss the detail 836 of the secondary legislation which dictated how the referendums would work and were of great importance and interest.
Your Lordships' House must retain the power to reject regulations. I shall come to that in a moment. As my noble friend Lord Campbell of Alloway pointed out, we could continue to use non-fatal Motions to point to where regulations need amendment, but your Lordships will recall that the Government ignored that procedure on the massive vote on beef-on-the-bone regulations. I do not say this as a condemnation of this Government, but non-fatal resolutions do not stake much terror into the heart of government of any party.
Both Houses, possibly in the context of the Joint Committee we should like to see put forward under stage two, should look at ways to enable amendment of secondary legislation. However, I agree with the noble Lord, Lord Peston, that it might be difficult to define a way forward for amending secondary legislation. It would need a lot of time and staff, and perhaps work off the Floor of the House, with evidence from parties to be affected, and complex mechanisms for reaching agreement between the two Houses. I listened with care to the noble Lord, Lord Dahrendorf, who suggested that we should perhaps look at the Welsh Assembly for an example of how to do that; and I shall certainly do that.
As regards the recommendations in the report of the Royal Commission that if we reject secondary legislation the House of Commons can in two or three days' time simply agree with it again and that is it, I believe that that would be totally unsatisfactory. I agree entirely with the noble Lord, Lord Goodhart, that if that power had been in place when your Lordships decided to reject the London elections measure, two days later the House of Commons would simply have rubber-stamped the government position and the noble Lord, Lord Goodhart, and myself would never have had meetings with the Government Chief Whip and his two colleagues and negotiated what I think was a sensible agreement and a way out. We were fortunate then because the Representation of the People Bill was there as a vehicle. I accept that. But I was not blind to the fact that there was a vehicle available. Nor, indeed, was the noble Lord, Lord Goodhart.
We have to be extremely careful about going down the road my noble friend Lord Wakeham suggests in these two recommendations. I think that government of any party would not be too unhappy about that recommendation. That is why I believe that we should retain our right to reject secondary legislation, perhaps doing so in a way which makes clear why we are rejecting it and what we should like to see changed; and the Government can then negotiate and come back with an amended regulation which your Lordships would then pass. As the noble Lord, Lord Goodhart, said after the London orders debate, I think that your Lordships should use that power—as my party would—very sparingly indeed.
A number of noble Lords have referred to the remarks of the noble and learned Lord, Lord Simon of Glaisdale, in a number of debates. However, I want to 837 close with the noble and learned Lord's words on Third Reading of the Representation of the People Bill on 6th March 2000. At col. 817 of the Official Report the noble and learned Lord said;I trust that henceforth there will be no question but that your Lordships have power to examine, scrutinise and challenge secondary legislation".That is certainly the view of these Benches.
§ 4.57 p.m.
§ The Minister of State, Cabinet Office (Lord Falconer of Thoroton)
My Lords, I join with every speaker in the debate and thank the noble Lord, Lord Dean of Harptree, for raising the matter and making such an excellent speech. As one noble Lord said, it set the tone. I thank all noble Lords who have participated in the debate. It has been a useful and illuminating debate in getting Members of this House to express views on the issue of how secondary legislation should be dealt with.
A range of suggestions was made. The noble Lord, Lord Dean of Harptree, said, "Let's get on with the Royal Commission's proposals and propose a way to amend secondary legislation". My noble friend Lord Peston said, "We cannot amend, but let us get on with some proposals in relation to amendment". The noble Lord, Lord Alexander, gave effectively five suggestions some of which are in the commission's report and some are not. The noble Lord, Lord Dahrendorf, directed us to Wales and said, "See what the National Assembly for Wales has done". The noble Lord, Lord Campbell of Alloway, said, "Ignoring the fact that the House of Commons would have to be involved in some way, let us just get on with it ourselves. Let us think of a way of procuring delay". The noble and learned Lord, Lord Simon of Glaisdale, said, "Don't do anything. Let us just rely upon our powers to reject provisions of secondary legislation".
The noble Lord, Lord Barnett, wrests credit away from the noble Lord, Lord Wakeham, for the proposal for three months' delay. He says that this is his idea and that of the noble Lord, Lord Peston. He says, "Let's get on with it" but equally says that we should cherry pick. The noble Lord, Lord Norton of Louth, rightly says that we should act in co-operation with the other place. The noble Lord, Lord Goodhart, rejects some of the proposals of the noble Lord, Lord Wakeham, but accepts others. Similarly, the noble Lord, Lord Mackay of Ardbrecknish, supports the idea of amendment. I simply go through that to indicate that there is plainly no consensus at present as to how one should deal with the issue—
§ Lord Peston
My Lords, I am grateful to my noble and learned friend for giving way. He must have heard a different debate from the one to which I have been listening. I was astonished by the high degree of consensus among noble Lords. I hesitate to ignore my noble and learned friend for the moment, but if we 838 were asked to sit down together I believe that we would come up with a solution to the whole set of problems. I have no doubt that there was considerable consensus.
§ Lord Falconer of Thoroton
My Lords, I believe there was a consensus that something should be done but not as to what that should be. The noble and learned Lord, Lord Simon of Glaisdale, for example, said, "Don't do anything; just rely on your power to reject". Other noble Lords said, "We have to get rid of our power to reject and delay". Other noble Lords said that we should delay in different ways. Yet other noble Lords, of whom the noble Lord, Lord Dahrendorf, is the best example, said, "Take a whole new model"; namely, the National Assembly of Wales. To say that there is a consensus on the way forward seems to me, with respect, optimistic. What was being said was simply that there should be a way forward.
§ Lord Norton of Louth
My Lords, I am grateful to the noble and learned Lord for giving way. Perhaps I may offer a suggestion. Can the Minister identify any noble Lord who argued against changing the process and introducing a sifting committee?
§ Lord Falconer of Thoroton
My Lords, the noble and learned Lord, Lord Simon of Glaisdale, said that we should simply rely upon our power to reject. The approach of the Government to the Royal Commission chaired by the noble Lord, Lord Wakeham, is that we would wish to hear detailed comments on its proposals. This debate has been a useful way of dealing with and receiving such comments, though I accept that it will not be the only way.
In my remarks, perhaps I may not address the particular proposals made by the House—this is a useful listening debate from our point of view—but address the way forward in the mean time. That raises the question of the current position in the present interim House. The Government believe that there is, and should be, a convention that this House does not reject secondary legislation. I should like to draw to your Lordships' attention two definitions of a constitutional convention which I believe are relevant. The first is found in Marshall and Moodie, Some Problems of the Constitution, which states:Conventions are rules of constitutional behaviour which are considered to be binding by and upon those who operate the constitution, but which are not enforced by the law courts".In Dicey's Introduction to the Study of the Law of the Constitution, he stated:The general rule that the House of Lords must in matters of legislation ultimately give way to the House of Commons is one of the best-established maxims of modern constitutional ethics".
§ Lord Simon of Glaisdale
My Lords, I am grateful to the noble and learned Lord for giving way in a time-limited debate. A great many years have passed—in fact, a century— since Dicey wrote that. How can the Minister possibly stand up now and say that there is no convention when that was expressly asserted in 1994 and expressly acted on within this very year?
§ Lord Falconer of Thoroton
My Lords, I shall come to that, if I may. I shall deal with the 1994 position and the February 2000 position. As has been agreed in the course of the debate, the House has rejected secondary legislation only twice since the war: on Rhodesian sanctions and on arrangements for the London mayoral elections earlier last month.
§ Lord Simon of Glaisdale
My Lords, I am sorry to interrupt the noble and learned Lord again. It is true that only twice have the votes been carried to a negative Division. But during the sixties and seventies, think the noble and learned Lord will agree that both parties repeatedly voted against secondary legislation without necessarily carrying it in the Division Lobby.
§ Lord Falconer of Thoroton
My Lords, I agree that from time to time people voted against secondary legislation. But, apart from the two occasions to which I have referred, those were the only occasions when secondary legislation was defeated by a fatal motion. The fact that between 1945 and the year 2000 Members of this House voted in a way inconsistent with the Salisbury/Addington convention does not mean that there was not a Salisbury/Addington convention which prevailed, and still prevails, in this House.
As your Lordships know, when secondary legislation is actually defeated by this House, the other place cannot cverrule your Lordships because the concurrence of both Houses is required. Perhaps I may deal with the 1994 debate initiated by the noble and learned Lord, Lord Simon of Glaisdale. There was no vote taken. As the then Leader of the House—
§ Lord Simon of Glaisdale
My Lords, again I am sorry to interrupt the noble and learned Lord. There was no vote taken because the resolution was carried nem. con.
§ Lord Falconer of Thoroton
My Lords, that is absolutely right. What was the basis on which it was carried? Perhaps we may refer to the words of the then Leader of the House, the noble Viscount, Lord Cranborne. When the issue was debated, he said that this sat very ill with your Lordships' role as a revising chamber— that is, to defeat secondary legislation—whose power should be one of asking the other place to think again, not to defy it.
As he put it,It is clear that the exercise of this crude power could result in stalemate between the two Houses with little scope for resolution"—[Official Report, 20/10/94; col. 361.]It is clear that when the noble Viscount, Lord Cranborne, indicated that the Conservative Party would not vote against the resolution proposed, everybody accented that the power was there to vote against secondary legislation—
§ Lord Simon of Glaisdale
My Lords, I do not think that even the noble and learned Lord can assert that the reason the vote was not carried by the Conservative Party was because the resolution was understood to mean precisely the opposite of what it said.
§ Lord Burlison
My Lords, perhaps I may remind noble Lords that this is a timed debate. I should like the Minister to have time to reply.
§ Lord Falconer of Thoroton
My Lords, I am being too provocative; I apologise. The reason I assert that that was why the Conservative Party, or indeed anybody, did not vote against the resolution is because that is the true meaning of what the noble Lord said. Nobody disputes that the power exists to vote against secondary legislation, just as nobody disputes that the power exists to vote against legislation in breach of the Salisbury Convention. The question is not: is the power there to vote against it? The question is: is there a convention that says constitutionally we should not do it?
I do not deny that, procedurally, as was resolved in the 1994 debate, noble Lords have the power to defeat secondary legislation; but I say that that is no different from their power to defeat legislation in breach of the Salisbury Convention.
Much secondary legislation is now very important as a means of delivering government policies. Sometimes, of course, it is simply detail or transitional but on other occasions it is crucial to the smooth process of government that secondary legislation should be used.
I think it unlikely that matters would ever come to the point that rejection would occur on small matters of detail. The fact that the power has been used or even invoked so rarely points to that. Therefore, almost by definition, the question of defeat of a statutory instrument will arise only when it deals with an important matter of policy. The question, therefore, is: should the House of Lords be able to prevent the elected government from doing things they wish to do, and which the elected Commons agrees they should do as a matter of important policy, where that policy requires secondary legislation for its implementation?
The question therefore is: should the House of Lords be able to prevent, for example, the fixing of a minimum wage at the level that the Commons want? Or should it be able to prevent the mayoral elections from going ahead altogether? When I say "prevent", I mean prevent altogether. That is the power that it is said exists in this House in relation to secondary legislation; in effect, a power to override the elected other place in relation to matters of high policy. If one looks at the history of this issue, the matter never arises in relation to detail. That is usually dealt with by agreement. The answer to the question must be and is, "No". The unelected Chamber should not be able to prevent the elected Government and Chamber from doing, as a matter of principle, what the other place decided to do.
This unelected Chamber is not the equal of the elected Chamber. Noble Lords opposite are rather given to claiming that, now that the House is more legitimate than it previously was, it has somehow acquired that right. That is nonsense. This House is indeed more legitimate than it was because all of its Members have in one way or another earned their 841 place. But in democratic terms it is still not as legitimate as the other place. Therefore, it is not right that it should exercise a power which actually sets aside and makes of no effect the wishes of the other place on important issues of policy, which decision cannot be reversed by the other place. This Chamber is a scrutinising Chamber. That is accepted. It is not one where important matters of principle are to be resolved as a matter of finality.
The prime power of this Chamber is to make the Government think again. This it already has the means to do, even on secondary legislation, by various devices drawing attention to concerns about individual instruments which fall short of outright rejection. For example, noble Lords may agree a Motion setting out the amendments they would ideally like to see made to an order. Noble Lords with more experience than I will know all of the non-fatal means by which this House developed mechanisms to draw to the attention of the executive or the other place what they would like to see in secondary legislation.
It is sometimes suggested that if the Government attach so much importance to something with which they cannot contemplate not proceeding, they ought to deal with it by way of primary legislation, thus leaving open the possibility of using the Parliament Acts to overrule your Lordships' House. That is a mistaken view on both constitutional and practical grounds. Everyone accepts that there are matters which are entirely properly dealt with by secondary legislation. Secondary legislation does not emerge from the ether at the whim of the Government. In every case where it is used, it is under powers which have been conferred in primary legislation.
§ Lord Mackay of Ardbrecknish
My Lords, I am following the argument of the noble and learned Lord, but does he agree that his argument would be on firmer ground if, during the passage of the primary legislation, the secondary legislation were available, thus enabling both Houses to see what the Government intended?
§ Lord Falconer of Thoroton
My Lords, how can it be available in every case? What happens when the minimum wage is changed? That is the sort of situation we are talking about.
§ Lord Mackay of Ardbrecknish
My Lords, we could be talking about the first time, when we could at least see it before we pass the primary legislation.
§ Lord Falconer of Thoroton
My Lords, sometimes it is available. The noble Lord gave examples. Sometimes, as I indicated—and frequently—it is a power given to a government on an ongoing basis which it is intended should be changed and, therefore, cannot always be available at first instance.
842 Parliament has agreed that secondary legislation is appropriate in those cases where it has given Parliament the power to pass secondary legislation. We in this House now have a highly-respected committee which advises on the question of whether the powers proposed are indeed appropriate. Governments of both parties take the recommendations of that committee, in my view rightly, extremely seriously.
On the practicalities, one of the main reasons for preferring secondary legislation is, as I have said, where the provisions are transitional; where they apply only in specified circumstances, which are themselves time-limited; where they are urgent: where they are needed to enable us to fulfil international obligations; or where they need to be flexible to respond to changing situations. Doing any of those things by primary legislation so that the Parliament Acts are available, risks unacceptable delay, especially if the Parliament Act had to be invoked. It clogs up the parliamentary process. Logically, if primary legislation is required on the first occasion that the issue arises, why would this House agree that in future secondary legislation would be adequate?
The Chairman of the Delegated Powers and Deregulation Committee, the noble Lord, Lord Alexander of Weedon—I am glad to see him in his place—who took part in this debate, fully accepts that the proper use of secondary legislation is essential to the proper workings of Parliament and government. Once we accept that that is the proposition, we end up in this strange situation which it appears that certain noble Lords are arguing for; that is, that this House has the power to veto certain acts of the elected government.
I venture to suggest that even the way in which the power has been used since the war does not indicate a desire to reject, but only to delay. In the case of the Rhodesian sanctions order, the noble Lord, Lord Carrington, said that,if the Government decided, in spite of the advice which we had given them, to re-lay the Order, we should be giving the Commons another opportunity to debate it in the light of what has been said in this House … I have always thought that this was the proper function of a Second Chamber".—[Official Report, 18/6/68; col. 576.]The noble Lord, Lord Carrington, was not asserting, even in relation to the Rhodesian sanctions order, a right to veto, which is the right being asserted by the noble and learned Lord, Lord Simon of Glaisdale. Indeed, when the Government did relay the order, as the noble Lord, Lord Goodhart, mentioned, your Lordships' House duly approved it. At the time, given the wider consequences of that first action, the words of the noble Lord, Lord Wade, in the second debate that,to flout the House of Commons, to overrule the elected Chamber, would undoubtedly be … one of the greatest mistakes this House has made for a long time".—[Official Report, 17/6/68; col. 357.]seemed prophetic. Did the Rhodesian sanctions order, in those circumstances, indicate that the House had a power to veto? In my view, clearly not. In my view, equally, it was not taken by this House as indicating that it had such a power—see the fact that this House 843 then developed non-fatal ways of dealing with the issue; see the fact that until last month it never sought to assert that power; see also the conclusions of the Wakeham Royal Commission which give what the noble and learned Lord, Lord Simon of Glaisdale, described as a "masterful analysis" of the existing position.
Paragraph 7 11 of the report stated:Although in 1994 the House of Lords (on a motion from Lord Simon of Glaisdale) asserted its 'unfettered freedom to vote on any subordinate legislation', in practice there has (so far) been no serious challenge since 1968 to the convention that the House of Lords does not reject Statutory Instruments".
§ Lord Campbell of Alloway
My Lords, will the noble and learned Lord read the first three lines of paragraph 7.39, which deals with this issue.
§ Lord Falconer of Thoroton
My Lords, I shall come to that. Paragraph 7.31 says:The powers of the present House of Lords in respect of Statutory Instruments are more absolute than those it has in respect of primary legislation. On the other hand, as we noted … there has since 1968 been no serious challenge to the convention that the House of Lords does not reject Statutory Instruments. Its influence over secondary legislation is therefore paradoxically less than its influence over primary legislation".Paragraph 7.39 says:We did consider the option of retaining the second chamber's present absolute veto over Statutory Instruments, particularly in relation to delegated powers".It continues further down,The absolute nature of the House of Lords powers in relation to secondary legislation is more apparent than real".So an objective consideration of the matter by the Wakeham Commission (if I may call it that), concluded that in reality there was no such veto. That is exactly consistent with the constitutional position of this House.
§ Lord Alexander of Weedon
My Lords, if the Minister is pressing, as he is passionately, that this power should not veto secondary legislation, is he not then making a devastatingly supportive case that there must be a delaying power or this House cannot properly fulfil its duty at all?
§ Lord Falconer of Thoroton
My Lords, at the moment I am discussing the present position. If we take 1968 as the starting point, this House has operated for the past 32 years on the basis that it has no power to reject secondary legislation. It has been perfectly satisfied with its non-fatal powers. What happens next requires consideration of the kind of ideas that we have discussed this afternoon. I am concerned to identify the present position.
What about the events of 22nd February 2000? In my respectful submission the noble Lord, Lord Goodhart, indicated the extraordinarily flawed nature of his argument in support of what happened on that occasion when he indicated that there was no convention of tae kind we have discussed. He said that if the matter had been debated or considered in the course of the primary legislation it would be wrong to 844 challenge the secondary legislation. He referred to the Access to Justice Act. As the noble Lord, Lord Goodhart, knows, the Greater London Authority Act established the mayor and the need for an election in that regard. Unlike in the cases of the then Scotland and Wales Bills—if I may call them that in shorthand—there was no suggestion or amendment proposed by anyone that there should be a freepost arrangement. No one thought it right to raise that matter at the appropriate time.
§ Lord Falconer of Thoroton
My Lords, when I have finished this sequence of remarks the noble Lord can demonstrate where I am wrong. The matter I was discussing was never debated at the appropriate tame. As with the Rhodesian sanctions, it is perfectly possible that this House acted in breach of the existing constitutional convention.
§ Lord Goodhart
My Lords, I suggest to the noble and learned Lord that the problem with the then Greater London Authority Bill was that the failure to include anything in the nature of a free mailshot was simply overlooked. I think that I speak for my noble friends when I say that they assumed that there were powers to create a mailshot. The legislation is extremely complex; there are cross-references to the Representation of the People Act 1983. I believe that a search has produced one reference to a mailshot in the Committee stage in the other place which certainly did not suggest that there would not be one. At the time no one realised that this problem would occur.
§ Lord Falconer of Thoroton
My Lords, as I say, the measure was included in the Scotland and Wales Acts. In a sense the noble Lord is saying that the Opposition, having failed to raise the matter at the right time, then decided to raise it at the wrong time; that is, when the secondary legislation went through. That may well be an indication of an exceptional circumstance. However, that mistake by the Opposition does not seem to me to justify the breaking of what—if one looks objectively at the history of this matter, as the Wakeham Commission did—was plainly a constitutional convention.
The Government believe that the fact that the process of reform of your Lordships' House has begun does not change the relationship between the two Houses. This House is still untouched by the electorate at large, while the other derives its whole existence from it. The other House must therefore prevail on issues such as this. It is wrong for this House, however strongly it feels, to reject an order which the elected Chamber is content to approve.
I turn briefly to the proposal in the Royal Commission report for a power of delay. As I said earlier, I can see that this is an issue whose case is well worth arguing. Indeed, to some extent I see the force of what the noble Lord, Lord Alexander, said. However, we cannot decide it now. That is obvious from the wide range of views that have been expressed.
845 When the noble Lord, Lord Wakeham, spoke in our debate on the Royal Commission report on 7th March he counselled against what he described as "cherry picking". The Royal Commission set out a blueprint for what it thought the functions of the second Chamber should be in the future. It then proposed a method of composition which it thought would best fit the second Chamber to fulfil those functions. The two—composition and functions—went together. Proposed functions which were suitable for the fully reformed House were not necessarily to be treated as suitable for the present transitional House. That is not to say that they are definitely unsuitable. One of the advantages of debates such as today's is that it enables us to explore precisely that kind of question.
However, where the Royal Commission thought that particular recommendations could with advantage be adopted in advance of full reform, it said so. The recommendations in relation to secondary legislation were not in that list for one very good reason; namely, that at least some of the changes to the treatment of secondary legislation which the Royal Commission recommended would require legislation, including many of those which are the subject of this debate.
I should remind the House that the proposal to allow this House to delay secondary legislation is part of a package of measures recommended by the Royal Commission. As many noble Lords have said, they include the establishment of a "sifting committee" to consider the best treatment of individual statutory instruments, particularly, but not exclusively, when the vires for the instrument have got out of step with the contemporary importance of the measures covered by it. They also include a requirement that no statutory instrument should be debated until the Joint Committee on Statutory Instruments has reported, and an extension from 40 to 60 days in the period of time during which a statutory instrument can be prayed against has been made. As many noble Lords have pointed out, both these recommendations were originally made by the Procedure Committee in another place. They have recently been endorsed by a fresh report from that same committee.
That brings me to one of the key reasons—which was specifically identified by the noble Lord, Lord Norton of Louth—for not considering in isolation the proposals in the Royal Commission's report in the chapter relating to secondary legislation. They affect both Houses of Parliament equally. The Royal Commission report stated that its proposals were aimed at,enabling the two Houses to work together in scrutinising Statutory Instruments more effectively".I believe that that is an important factor which we should continue to bear in mind. It is particularly relevant in this case because the power of delay proposed by the Royal Commission is, of course, a power to send a statutory instrument back to the Commons. They will have to develop procedures to deal with such an arrangement. It is not just a request for a Minister to think again; it is a request for the 846 other place to think again. Therefore, before we in this House decide that this is a desirable development, we ought to be certain that it is also acceptable to the other place. It would be a pity if a proposal aimed at increasing the ability of the two Houses to work together became instead a bone of contention between them.
As I said at the outset, I am grateful to all noble Lords who have participated in the debate as it has given us an opportunity to air many of the important issues raised by the Royal Commission and other associated matters.
§ 5.26 p.m.
§ Lord Dean of Harptree
My Lords, I, too, am exceedingly grateful to noble Lords on all sides of the House who have participated in what has been a most useful and constructive debate. I am also grateful to the noble and learned Lord for listening to the whole of the debate. I am relieved that, although he did not say "yes", he did not quite say "no" either. Therefore I believe that we can proceed on the basis of the clear message that has emerged from the debate; namely, "get on with it now". The time is ripe to sharpen up parliamentary procedures for the scrutiny of delegated legislation. On that note, I beg leave to withdraw the Motion.
Motion for Papers, by leave, withdrawn.