29.In December 2015, the Strathclyde Review published its findings as a Command Paper, In his introduction, Lord Strathclyde argued that the review had sought to “balance the interests of proper parliamentary scrutiny and the certainty that government business can be conducted in a reasonable manner and time.” Noting recent defeats in the House of Lords, Strathclyde warned against the House, despite its expertise in secondary legislation, becoming a “House of Opposition.” Expressing regret that the “fine convention on statutory instruments have been stretched to breaking point,” Strathclyde argued that the House of Lords’ vote on Tax Credits had broken new ground, suggesting that this convention “is now so flexible that it is barely a convention at all.” The Review outlined three potential options to provide MPs with a decisive role on statutory instruments, and we list them below.
30.Removing the House of Lords from the statutory instrument (SI) procedure altogether. Under this model, the House of Commons would be the sole chamber required to give consent to SIs made under the affirmative procedure and would be the only chamber able to pray for the annulment of a SI made under the negative procedure. As Lord Strathclyde explains, two things would be required to achieve this:
i)Primary legislation would be needed “to make a general modification of the provisions setting out the parliamentary procedure for the exercise of the powers to make those instruments. The general modification would effectively remove all references to approval by the House of Lords or to annulment in pursuance of a resolution of that House”;
ii)“For powers under Acts to be passed in the future, no primary legislation would be needed. All that would be needed would be a policy decision that future Bills would be drafted with Commons-only procedures for the powers they create.”
31.This option has been criticised by Professor Meg Russell as “extreme” and “entirely disproportionate”, leading her to speculate as to whether its inclusion in the report was “simply to make the other options appear more moderate.” The House of Lords Constitution Committee, in its report on the Strathclyde Review, has described Option 1 as “clearly unacceptable” and said that “it would significantly curtail the capacity and responsibility of Parliament to oversee the Executive”. This conclusion was supported by the House of Lords Secondary Legislation Scrutiny Committee in their report on the Strathclyde Review.
32.Lord Strathclyde warned of the “significant disadvantages in this option”, and stated that this option would “remove the basis for any involvement by the House of Lords, even in an advisory capacity, in the passage of legislation in the form of statutory instruments” and as a result would be “detrimental to the quality of legislation”. Lord Strathclyde noted that the implementation of Option 1 would be a “clear indication for the Government to pass more and more by secondary legislation.”
33.PACAC agrees with the conclusions of the House of Lords Constitution and Secondary Legislation Scrutiny Committees, and Professor Russell on Option 1. Excluding the House of Lords from the SI process altogether would be an entirely disproportionate and retrograde development, to the detriment of Parliament as a whole and to the quality of legislation.
34.A non-statutory, binding resolution of the House of Lords. According to Strathclyde, this option would retain the House of Lords’ present role in relation to statutory instruments. However, there would be the addition of a resolution of the House of Lords/amendment to the House of Lords’ Standing Orders that would set out “in a more precise way” restrictions on how this power should be exercised in practice.
35.Professor Russell has suggested that Option 2 may be an attractive way forward for both the House of Lords and, ultimately, the Government, pointing to the fact that unlike Options 1 and 3 it does not require primary legislation to implement. As Professor Russell notes, while a drawback of Option 2 is that it “requires different parties to get around the table and negotiate”, similar negotiations would be needed for “the smooth implementation of any legislative option”. Furthermore, “the benefit of option 2 is that this [cross-party negotiation] is all it requires”, thus avoiding the “need for a bill, for lengthy stages through both chambers, amendments and all the rest.”
36.However, Professor Russell has suggested that as a quid pro quo for the House of Lords to agree to respect and endorse a renewed convention, the Government may need to tackle the wider issue of House of Lords reform and in particular the expanding size of the Chamber. In short, Professor Russell is suggesting a deal whereby the House of Lords would sign a self-denying ordinance in return for the Government doing the same (regarding the use of Prime Ministerial appointments to the House of Lords). Professor Russell suggested that seeking such an agreement “is worth a try”, even in a context where potential difficulty may arise from Ministers “talking up conflict” and the “more aggressive” attitude of Liberal Democrat Peers to votes on Statutory Instruments.
37.Lord Strathclyde raised doubts as to the prospects of any agreement being reached on the lines outlined by Professor Russell. He explained that there is not “any great incentive for Government or Opposition to create a deal of that nature”. As for a renewed convention, Lord Strathclyde did speak of Option 3 laying the grounds for “what a convention could look like without the statutory backing”, thus raising the prospect of the Government legislating for reform, but not immediately commencing any such legislation and instead using the latent threat of commencement to discourage the House of Lords from using their full powers in relation to Statutory Instruments.
38.Despite Lord Strathclyde’s reservations about the likelihood of Option 2 leading to a cross-party settlement along the lines suggested by Professor Russell, that does not mean that such an agreement should not be attempted. As Professor Russell suggests, Option 2 could provide an attractive way forward offering cross-party agreement on how secondary legislation will be considered in the House of Lords and resolve the problems posed by the unsustainable, ever-expanding size of the second chamber. While concluding any such deal would undoubtedly include some difficult moments, it would avoid the vastly greater problems that would face any legislative attempt at reform. If the Government intends to carry forward any reform of the House of Lords’ role in secondary legislation it should proceed on the lines of Option 2 and, as Professor Russell suggests, should include in negotiations the question of the size of the House of Lords and Prime Ministerial appointments to the second chamber.
39.The House of Lords has power to delay SIs by asking the House of Commons to think again. This would create a new process, underpinned by statute, whereby Peers may vote against an SI, but where the Commons would be able to override the House of Lords and insist on its primacy.
40.Lord Strathclyde recommended that this third option should be pursued, arguing that it would “provide the government of the day with a degree of certainty, while maintaining for the House of Lords a simplicity of procedure in keeping with already established procedures for other forms of legislation.” Finally, “it would enable the Commons to play a decisive role” in the approval of SIs.
41.Strathclyde rejected the idea of a fixed period of delay between a SI’s defeat in the House of Lords and an override in the Commons, on the grounds that a specific period of delay might “overrun the time specified in the draft or instrument for its commencement” (effectively denying the Commons the intended ability to override the House of Lords) and that the Commons needs to retain the ability to override the House of Lords “rapidly in cases of urgency.” According to Strathclyde:
…the absence of any specified period of delay seems very unlikely, in practice, to reduce in any way the chances that a proper consideration of the Lords’ decision, and a serious reconsideration of the instrument, will be undertaken by a government, which will still need to explain and justify to the House of Commons the motion to override the Lords. They may need to do it rapidly but they will still need to do it seriously and well.
42.Alongside this recommendation, Strathclyde called for a review to be undertaken, with the involvement of the House of Commons Procedure Committee, “of the circumstances in which statutory instrument powers should be subject to Commons-only procedures”, especially on Finance Bills. Lastly, to discourage excessive use of the new process proposed for SIs, Strathclyde recommended that the Government should take steps to ensure that Bills contain “an appropriate level of detail” with less of a reliance on SIs for their implementation.
43.Professor Russell expressed reservations about Option 3 and suggested that it would only be acceptable if safeguards were put in place. For example, it is not clear, from the Strathclyde Review report, whether under Option 3 “there would have to be a debate on the Floor of the House of Commons if an instrument was rejected by the Lords”, rather than “a meeting of a statutory instrument Committee on a corridor and a deferred division”. In addition, Professor Russell suggests that were Option 3 to be implemented, the House of Lords would “want to look more carefully in future at what powers were being delegated” and would seek better scrutiny standards in the House of Commons for secondary legislation.
44.The House of Lords Constitution Committee has similarly suggested that a number of matters would need to be addressed in detail by Parliament and the Government if Option 3 were to be implemented. These matters include, the steps that would need to be taken “to ensure that delegated powers proposed in primary legislation are set out in appropriate detail, sufficiently narrow in scope, and restricted to matters of detail rather than of principle”, the question of whether the exercise of Henry VIII powers (see below) would still be subject to a Lords veto or to a modified procedure and “whether and how Commons procedure would be altered to ensure that a statutory instrument rejected by the House of Lords would be given an appropriate degree of scrutiny on reconsideration”.
45.The issue of whether Henry VIII powers will be included under Option 3, or be subject to a Lords veto is of particular significance. Henry VIII powers refer to provisions within legislation that allow for the amendment or even repeal of primary legislation, through secondary legislation. In a recent speech, the Crossbench peer and former Lord Chief Justice of England and Wales, the Rt Hon Lord Judge warned that, “unless strictly incidental to primary legislation,” every Henry VIII clause “is a blow to the sovereignty of Parliament”. He therefore concluded that “save in a national emergency” only primary legislation should be used to “repeal, suspend, amend or dispense with statute”.
46.In its report on the Strathclyde Review, the House of Lords Secondary Legislation Scrutiny Committee made clear its opposition to Option 3, arguing that it would seriously weaken “the role and purpose of the House [of Lords] in relation to secondary legislation, leaving it with less influence over secondary legislation than it has over primary legislation”. However, should the Government proceed with Option 3, the Committee recommended that any legislation introduced under this procedure “should first be published in draft and be subject to pre-legislative scrutiny in order to avoid any danger of the Government, to use Earl Howe’s words, “carving out a smooth legislative path for themselves”.”
47.Lord Strathclyde argued that unlike Option 1, which would be a “clear indication for the Government to pass more and more by secondary legislation”, Option 3 would provide “the opportunity for the House of Lords to send something back to the House of Commons and for there to be a debate and a vote”. This he contended would be “quite a powerful disincentive on something that is politically controversial, within the party of government as well as within the Opposition, and I think is quite a big deal”. Used well, Lord Strathclyde suggested, Option 3 could be a “substantial new power in exchange for an old power that is rarely used”.
48.Lord Strathclyde’s suggestion that Option 3 could offer a more readily usable and substantial new power for the House of Lords over statutory instruments, in place of its rarely used veto, makes this option seem attractive, but there would be significant consequences if this option were adopted. Without appropriate safeguards, Option 3 could see the House of Lord’s influence and role in passing statutory instruments substantially diminished, allowing a Government with a Commons majority to override any Lords rejection of SIs and would incentivise the increased use of delegated legislation. This could also lead to the House of Lords routinely defeating SIs, as a relatively harmless political gesture, but one which would amount to a significant change in the relationship between the two Houses. PACAC agrees with Professor Russell that, were the Government to proceed with Option 3, any attempts to override a Lords rejection of a SI should trigger a full debate on the floor of the House of Commons. We still do not think that this would be sufficient safeguard.
49.PACAC also agrees with the House of Lords Constitution Committee that there are a number of outstanding issues that would need to be addressed before Lord Strathclyde’s Option 3 could or should be implemented. A blanket application of Option 3 to statutory instruments would be deeply undesirable, particularly in relation to the exercise of Henry VIII powers, whereby an Act makes provision to amend or repeal primary legislation using secondary legislation. We agree with Lord Judge, that these clauses, unless strictly incidental to primary legislation, represent a blow to Parliamentary sovereignty. If the Government is minded to proceed with Lord Strathclyde’s recommendations, then it must guarantee that Option 3 would not apply to instruments which amend primary statute.
50.The sheer size and scale of the use of statutory instruments makes scrutiny, particularly in the House of Commons, an incredibly difficult task and Parliament has relied heavily on the House of Lords for the expertise and skill it has cultivated in scrutinising SIs. Reform of the sort proposed by Option 3 could, without appropriate safeguards, serve as an incentive for the Government to pilot even more policy changes through secondary legislation. We therefore agree with the Houses of Lords Secondary Legislation Scrutiny Committee’s suggestion that in the event Option 3 is pursued by the Government, any legislation introduced under this reform should first be published in draft and be subject to pre-legislative scrutiny.
51.In his review, Lord Strathclyde recommended that the Government should take steps to ensure that Bills contain “an appropriate level of detail” with less of a reliance on SIs for their implementation. The Government must publish, before it presents any legislative proposals designed to implement the Strathclyde Review, the steps it will take to ensure that Option 3 is not abused. These steps must include a guarantee that future Bills proposing delegated powers not only contain an appropriate level of detail, but include only delegated powers that are sufficiently narrow in scope.
52.In summary, there was in fact no constitutional crisis arising from the defeat of the Tax Credits measure. There is therefore no need for change in the procedure relating to statutory instruments, least of all for a change in legislation which could have consequences- such as an increased risk of judicial intervention in the relations between both Houses of Parliament. We think the issue of the excessive size and unbalanced composition of the House of Lords is the more pressing issue, and it is wrong to consider the powers and functions of the House of Lords in isolation, on the basis of one wholly exceptional and highly political event. PACAC will hold an inquiry into the size and composition of the House of Lords later in this Parliament.
43 Strathclyde Review, , p.16.
44 Russell, M. The Strathclyde report: a threat of an opportunity for the Lords? UCL Constitution Unit, December 18 2015; .
45 House of Lords Select Committee on the Constitution, Delegated Legislation and Parliament: A response to the Strathclyde Review, 9th Report of Session 2015–16, , 23 March 2016, p.31.
46 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, p.29.
47 Strathclyde Review, , p.16.
49 Russell, M. UCL Constitution Unit, December 18 2015.
50 Russell, M. UCL Constitution Unit, December 18 2015.
53 Strathclyde Review, , December 2015, p.18.
54 Strathclyde Review, , December 2015, p.20.
57 House of Lords Select Committee on the Constitution, Delegated Legislation and Parliament: A response to the Strathclyde Review, 9th Report of Session 2015–16, , 23 March 2016, para.85.
58 Ceding Power to the Executive; the Resurrection of Henry VIII, transcript of speech given by Rt Hon Lord Judge, 12 April 2016, King’s College London, pp.13–14.
59 House of Lords Secondary Legislation Scrutiny Committee, Response to the Strathclyde Review: Effective parliamentary scrutiny of secondary legislation, 32nd Reportof Session 2015–16, , 14th April 2016, para.114.
11 May 2016