5.Acts of Parliament regularly confer powers on ministers, but sometimes on others, to make more detailed orders, rules or regulations by means of secondary or delegated legislation and, as a result of the Statutory Instruments Act 1946, most, though not all, secondary legislation falls within the umbrella term of ‘Statutory Instruments’ (SIs).
6.As the House of Commons Library Paper on Statutory Instruments explains:
The scope of SIs varies greatly, from the technical (e.g. to set or vary the dates on which different provisions of an Act will come into force, to change the levels of fines or penalties for offences or to make consequential and transitional provisions) to the much wider-ranging, such as filling out the broad provisions in Acts. Often, Acts only contain a broad framework and SIs are used to provide the necessary detail that would be considered too complex to include in the body of an Act.
7.The precise procedure for the approval, and parliamentary control, of SIs is outlined in the parent Act. Most SIs fall into one of two categories:
(a)Instruments subject to the negative resolution procedure
(b)Instruments subject to the affirmative resolution procedure.
8.Under the negative resolution procedure, which applies to the majority of delegated legislation, instruments take effect unless, within a permitted time limit, “either House records its disapproval; the Address to Her Majesty praying that an instrument be annulled is colloquially known as a ‘prayer’.” An SI made under the affirmative resolution procedure, on the other hand, cannot take effect “unless Parliament has expressly approved it.” In some instances, the Government may also be required to table the said instrument as a draft for approval by both Houses. In addition, there is another, less well-used, procedure known as the ‘super-affirmative procedure’, which “provides for a higher level of parliamentary scrutiny, based on an initial examination of a legislative proposal, recommendations for amendment, if appropriate, and further scrutiny of a draft instrument.” Other and rarer categories of instrument also exist.
9.The imbalance between the volume of, and relative scrutiny afforded to, Primary and Secondary Legislation has been widely commented on. For example, Professor Mark Elliott, highlighted that “in 2015, the UK Parliament passed 34 Acts, while, 1,999 statutory instruments have been made.” The sheer volume is such that, according to Professor Elliott, “Parliament could not hope to scrutinise them all in any degree of detail.” Robert Rogers (former Clerk of the House of Commons, now Lord Lisvane) and Rhodri Walters (former Reading Clerk in the House of Lords) note that the “volume of delegated legislation is huge, and this presents particular challenges for parliamentary scrutiny.”
10.Importantly, while the Parliament Acts 1911 and 1949 have limited the House of Lords ability to block primary legislation passed by the House of Commons, removing its previous outright veto to a delay of one year, they do not apply to delegated legislation. As the notes:
The Parliament Acts do not apply to delegated legislation. So delegated legislation rejected by the Lords cannot have effect even if the Commons have approved it. Neither House of Parliament has the power to amend delegated legislation. The House of Lords has only occasionally rejected delegated legislation. The House has resolved “That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration.
Successful Statutory Instruments therefore rely on either the House of Lords’ active agreement (in the case of those made under the affirmative procedure), or its latent consent (in the case of those made under the negative procedure). Either way, the Upper Chamber may, with the exception of instruments whose subject is taxation, exercise a veto. It has done so only five times in fifty years.
11.In addition, and as the Strathclyde Review’s report acknowledges, the House of Lords has played a particular active role in the scrutiny of SIs. Not only does the House of Lords, unsurprisingly, provide half of the membership of the Joint Committee on Statutory Instruments (JCSI), but it also boasts a Secondary Legislation Scrutiny Committee (SLSC) and a Delegated Powers and Regulatory Reform Committee (DPRRC). SIs laid before both Houses are subject to scrutiny by the JCSI and SLSC. The SLSC “examines the policy merits of regulations and other types of secondary legislation that are subject to parliamentary procedure” and through its reports, the SLSC can draw to the “special attention of the House” any SI “laid in the previous week which it considers may be interesting, flawed or inadequately explained by the Government.” The DPRRC’s role is “to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny”. The SLSC and DPRRC have been described by Professor Meg Russell as “the two most important committees dealing with delegated legislation” in Parliament. Robert Rogers (Lord Lisvane) and Rhodri Walters also emphasize the level of scrutiny work undertaken in the House of Lords on SIs, highlighting that “the House of Lords spends quite an amount of its time debating secondary legislation though much of this discussion is off the floor in Grand Committee.”
12.Statutory Instruments represent an important and expanding aspect of how government obtains its legislation in the United Kingdom. The increasing volume of statutory instruments (SIs) makes it difficult for Parliament to scrutinise more than a small proportion effectively and rigorously. In this context, the House of Commons relies upon the particular attention paid to SIs by the House of Lords, in particular through the Secondary Legislation Scrutiny Committee and Delegated Powers and Regulatory Reform Committee. Whatever opinions are held on the merits of the present House of Lords, it should be commended for this vital scrutiny.
13.As noted in paragraph 10 of this report, while the , has limited the House of Lords ability to block primary legislation passed by the House of Commons, the Parliament Acts do not apply to delegated legislation.
14.Nevertheless, successive governments have argued that a convention exists whereby the House of Lords does not reject Statutory Instruments. In 1968, for example, when the House of Lords rejected an Order to implement UN sanctions against Rhodesia, Government Peers warned that the defeat was “exceptional” and violated a convention whereby the “Conservative majority in your Lordships’ House would not vote against an Order put forward by a Labour Government.” While an identical Order was made and approved by the House of Lords a month later, the ill-fated Parliament (No.2) Bill in 1969 proposed by the then Labour Government sought, among other provisions, to curtail the House of Lords power over SIs. As Harold Wilson explained during the Bill’s second reading:
The third part of the Bill, Clauses 13, 14 and 15, breaks new ground in dealing with subordinate legislation. The general intention underlying these Clauses is stated in Clause 13, which says that in cases where each House of Parliament has power … to control the making … of an instrument … a decision of the House of Lords may be overruled by the House of Commons.
15.The noted in its 2006 report that between 1983 and 1991, “the Lords never once divided on a motion fatal to a SI. Instead, there were votes on critical but non-fatal motions or amendments.” As a result, by 1994 “it was beginning to be asserted as a convention not merely that the Lords did not defeat SIs, but they did not even divide against them”. Indeed, during a House of Lords debate on the Deregulation and Contracting Out Bill on 6 June 1994, the Government’s spokesperson, Lord Strathclyde, suggested that the House of Lords had a convention “that it does not divide on secondary legislation”.
16.In response to this suggestion, the Crossbench peer and former Law Lord, Lord Simon of Glaisdale tabled a motion in the House of Lords on 20 October 1994 that sought “to make clear that there is no convention which precludes your Lordships from voting on subsidiary legislation”. This motion, which affirmed the House’s “unfettered freedom to vote on any subordinate legislation submitted for its consideration”, was carried without a vote and is now recorded in the House of Lords Companion.
17.Following the election of the Labour Government in 1997, and the removal of all bar 92 hereditary peers via the House of Lords Act 1999, the question of whether a Convention existed has attracted increasing attention. In a 1999 speech, in the context of the House of Lords Act, the then Shadow Leader of the House of Lords, Lord Strathclyde, claimed that a convention had existed whereby the Opposition should not vote against SIs, before declaring this convention dead. However, as Professor Meg Russell has previously noted, Lord Strathclyde’s claim that the convention on secondary legislation was ‘dead’, “was not, as might have been expected, followed through with a string of defeats”.
18.Indeed, a year after Lord Strathclyde’s declaration, the report of the (Wakeham Commission), published in January 2000, showed sufficient confidence to pronounce that “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”. It recommended that the House of Lords’ power in this area be amended, moving from an absolute to a suspensory veto of three months.
19.However, a month after the publication of the Wakeham Commission report, the House of Lords broke with a pattern of behaviour that had existed since 1968 and voted down SIs. Two SIs, both relating to elections to the new Greater London Authority, were rejected by Peers by margins of 215 to 150 votes (the Greater London Authority (Election Expenses) Order 2000) and 206 to 143 votes (Greater London Authority Elections Rules Order 2000) respectively.. These votes were highlighted by our predecessor Committee, the then Public Administration Committee (PASC), in its 2002 report, , as proof that the House of Lords was “prepared to use its veto power in appropriate cases.” As a result, PASC concluded that the House of Lords “should not lose that valuable right.”
20.In its 2006 report, highlighted evidence from the-then Conservative opposition affirming the right of Peers to reject SIs, albeit such rejection “should be exceptional in the extreme.” Furthermore, they opposed the Wakeham proposal of a suspensory delay. The Liberal Democrats disputed the existence of a convention, arguing that it was “not a convention so much as a habit” that peers generally do not reject SIs.
21.The then Clerk of the Parliaments, Sir Paul Hayter, noted that defeated instruments can always be re-laid (though in the case of an order made under the affirmative resolution procedure a re-laid instrument “must be at least slightly different”, while if it is negative “it may be re-laid with a new title”) and in the extreme can be embodied in a Bill. As a result, he agreed “with the Wakeham report that rejection of an SI “in practice… would not trigger a constitutional crisis.”
22.On the question of whether this convention should be codified or not, Lord Norton outlined the several objections in his evidence to the Joint Committee on Conventions:
(a)It is not agreed that there is any such convention;
(b)SIs do not normally involve “great issues of principle”, and any argument in Parliament is usually only about fitness for purpose;
(c)A rejected order can be re-laid;
(d)The power to reject supports the work of the SI Merits Committee;
(e)Power to reject orders under the Legislative and Regulatory Reform Bill will be even more important than power to reject mainstream SIs.
23.In its conclusions, the Joint Committee agreed that it was a “convention recognised by the opposition parties” that the “House of Lords should not regularly reject Statutory Instruments, but that in exceptional circumstances it may be appropriate to do so.” As such, it disagreed with the Government’s position that “any defeat of an SI by the Lords is a breach of convention”, noting that “it is not incompatible with the role of a revising chamber to reject an SI.” Since the Joint Committee’s report was published in 2006 (and before the Tax Credits defeat last October), the House of Lords defeated the Government twice on SIs: once, on the draft Gambling (Geographical Distribution of Casino Premises License) Order 2007 and, secondly, the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012.
24.There is no consensus as to whether there is a convention regulating the House of Lords ability to exercise its formal powers to block secondary legislation. For example, while the Wakeham Commission suggested that a convention had developed whereby the House of Lords did not defeat Statutory Instruments, the Joint Committee on Conventions in its 2006 report suggested that a convention had developed, which was “recognised by the opposition parties”, whereby the House of Lords should not regularly reject Statutory Instruments, but that in exceptional circumstances it may be appropriate to do so. There is not universal agreement on what precise form this convention might take and this therefore indicates that no clear convention exists. Instead, it would appear more helpful to draw on the distinction between invariable and usual practice. While it is usual practice for the House of Lords not to withhold agreement to statutory instruments, it is not an invariable practice. Therefore, it cannot be satisfactorily be described as a convention that the House of Lords never rejects a statutory instrument.
26.However, there was some ambiguity about the precise convention(s) the House of Lords were accused of breaking. While giving evidence to PACAC as part of our inquiry into English Votes for English Laws (EVEL) and the Future of the Union, Sir William McKay, a former Clerk of the House of Commons, and Lord Norton were asked which convention they felt was in question:
Sir William McKay: I think the primacy of the decisions of the House of Commons in matters financial.
Lord Norton of Louth: Yes, I would agree with that insofar as the convention is engaged. It is that the Commons has primacy in relation to financial matters. There is not a convention that the House of Lords does not reject statutory instruments. It variously does; it has asserted its right to do that. It is not an issue whether it is can, it is in what conditions it should.
27.Former Clerk of the House, Lord Lisvane, argued that “talk of a crisis is entirely hyperbolic”, and pointed to the roots of the SI in the 2002 Tax Credits Act, a measure that was “quite clearly, in 2002 and in the debate on the very first regulations, seen as being a social security measure, not a taxation and finance measure.” Professor Russell agreed that the House of Lords’ vote on tax credits did not constitute a constitutional crisis and indeed said he did “not think it [the House of Lords’ tax credits votes] was terribly constitutionally significant”. Lord Strathclyde concurred that this was not “a constitutional crisis” and that “everyone behaved within the law”.
28.The House of Lords’ votes on the tax credits regulations may have been political drama and an embarrassment for the Government, but they did not constitute a constitutional crisis. As Lord Strathclyde has acknowledged, the House of Lords was behaving well within the powers available to it on statutory instruments. The House of Lords did not vote in favour of the more provocative fatal motion tabled by Baroness Manzoor and instead voted for amendments that delayed consideration of the regulations. It was the Government which chose to proceed via secondary legislation, an area where the House of Lords retains a veto power, however rarely it is used. Government could have chosen to implement these changes through primary legislation where the House of Lords has no such veto power.
9 Kelly, R., House of Commons Background Paper: Statutory Instruments, 18 December 2012, , p.3.
10 Kelly, R.,House of Commons Background Paper: Statutory Instruments, 18 December 2012, , p.5.
11 Erskine May, Twenty-Fourth Edition, 2011, p.671.
12 Erskine May, p.672.
13 Erskine May, p.667.
14 Elliott,M. , Public Law for Everyone, 17 December 2015.
15 Rogers, R. and R. Walter, How Parliament Works (7th Ed), 2015, p.223.
16 , p.198.
17 Erskine May, p.672.
19 Strathclyde Review: Secondary Legislation and the primacy of the House of Commons, December 2015, , p.9.
22 Russell, M. , UCL Constitution Unit, December 18 2015.
23 How Parliament Works, p.228.
24 HC Debates (Hansard) 3 February 1969, .
25 Joint Committee on Conventions, , First Report of Session 2005–06, HL Paper 265–I/HC 1212–I, 3 November 2006, para. 195.
26 HL Deb 6 June 1994, .
27 House of Lords, , 2015, p.198.
28 Politeia Lecture by the Rt Hon Lord Strathclyde: Redefining the Boundaries Between the Two Houses, 30 December 1999, pp 9–10.
29 Russell, M. A, Stronger Second Chamber? Assessing the Impact of House of Lords Reform in 1999 and the Lessons of Bicameralism, Political Studies, Vol. 58, Issue 5, December 2010, p.875.
30 Royal Commission on the Reform of the House of Lords, A House for the Future, , January 2000, p.71.
31 Royal Commission on the Reform of the House of Lords, A House for the Future, , January 2000, p.77.
32 The defeated SIs were the Greater London Authority (Election Expenses) Order 2000 and the Greater London Authority Elections Rules 2000.
33 Public Administration Select Committee, The Second Chamber: Continuing the Reform, Fifth Report of Session 2001–2002, , 14 February 2002, paras 79–80.
34 Joint Committee on Conventions, , First Report of Session 2005–06, HL Paper 265–I/HC 1212–I, 3 November 2006, paras 209–215.
35 Joint Committee on Conventions, , First Report of Session 2005–06, HL Paper 265–I/HC 1212–I, 3 November 2006, para. 218.
36 Joint Committee on Conventions, , First Report of Session 2005–06, HL Paper 265–I/HC 1212–I, 3 November 2006, para. 223.
37 Joint Committee on Conventions, , First Report of Session 2005–06, HL Paper 265–I/HC 1212–I, 3 November 2006, para. 228.
38 House of Lords Secondary Legislation Scrutiny Committee, Response to the Strathclyde Review: Effective parliamentary scrutiny of secondary legislation, 32nd Report of Session 2015–16, , 14th April 2016, para. 56.
11 May 2016