Political parties and groups
204. The Government say that for the Lords to reject
an SI is "incompatible with its role as a revising chamber".
They argue that "Statutory instruments are made by Ministers
and it is for the Commons, as the source of Ministers' authority,
to withhold or grant their endorsement of Ministers' actions."
Lord Norton of Louth called this "an absolutely atrocious
statement in the best Jim Hacker or Sir Humphrey style".
In supplementary evidence, the Government argue further that,
having delegated a power, both Houses should usually allow it
to be exercised - "unless, perhaps, the instrument has not
been properly made, or is ultra vires". They point
out that SIs are not covered by the Parliament Acts, and that
there is no scope for 'ping-pong'.
205. In supplementary evidence, the Government also
distinguish between the moving of a fatal motion and the passing
of such a motion. It is the latter which they consider inappropriate.
206. The Government endorse the Wakeham recommendation
to reduce the Lords' power in this area.
Pending such a change in the law, they commend the use of non-fatal
Grocott assured us that defeat on such a motion is taken "very
207. We asked the Government how they had in fact
responded to the seven such motions passed by the Lords since
1997. The answer
may be summarised as follows:
a) Licensing Act 2003 (Second Appointed Day)
Order 2005 - No change, but the Minister wrote a letter to the
mover of the motion.
b) Higher Education (Northern Ireland) Order
2005 - No change, but the Government gave an undertaking to the
Commons to consider the matter if the Northern Ireland Assembly
was not reconstituted.
c) Regulation of Investigatory Powers (Communications
Data) Order 2003 (two motions) - The Lords' concerns were addressed
in a draft code of practice.
d) Misuse of Drugs Act 1971 (Modification) (No.
2) Order 2003 - No change.
e) Food Supplements (England) Regulations 2003
- No change.
f) Beef Bones Regulations 1997 - No change.
208. The Government acknowledge that "Somewhat
different considerations may apply" to super-affirmative
orders. If the
order amends primary legislation, "A case can ... be made
for the Lords to be able in certain circumstances to say that
the issue being raised is so significant that primary legislation
is the only appropriate way of proceeding".
209. The Opposition consider the position to be clear:
the Lords have the right to reject, but its use "should be
exceptional in the extreme". They reject the Wakeham proposal.
Instead, they would like to see less regulation, fewer skeleton
Bills and more "on the face of the bill". They say it
is "near to a constitutional convention" that Governments
accept recommendations of the Lords Delegated Powers Committee.
210. In oral evidence, Lord Strathclyde said, "we
do not (with one exception) defeat secondary legislation".
He candidly admitted that his statement in 1999 that the convention
was "dead" was an attempt to "push out the boundaries",
and a reaction to the Lords reform situation at the time.
211. Lord Strathclyde said that before voting down
the Greater London Authority Orders in February 2000, the Opposition
had made sure that the Government would be able to restore the
situation and hold the GLA election; and even so, he hinted that
it had been a mistake.
He now sees the power of rejection as a "long-stop".
212. We asked the Opposition how they decide whether
to oppose an SI. The answer was that it depends on the issue.
Examples of situations where they might oppose were (a) when the
SI makes an unexpected use of the enabling power and (b) when
it appears to be unworkable.
213. The Liberal Democrats likewise argue against
a convention that the Lords do not reject SIs. If this is generally
true, they say it is not "a convention so much as a habit".
Lords are better placed than MPs to scrutinise SIs, and need "proper
powers of scrutiny and, if necessary, rejection", especially
in the absence of power to amend. They oppose the Wakeham proposal.
They are unwilling to define situations in which rejection is
justified, for reasons of difficulty of definition. They agree
with others that the power to reject underpins scrutiny, and that
without it the Lords would be less willing to agree to delegated
powers in the first place.
214. In oral evidence, Lord Wallace of Saltaire took
a more moderate line. "I would understand the Convention
as being that the Second Chamber should not regularly send back
statutory instruments..., but that, under exceptional circumstances,
it is appropriate for it to do so". Mr Heath agreed: rejection
should be used "extremely sparingly".
However the Liberal Democrats did not join Lord Strathclyde in
regretting the votes against the GLA Orders in 2000.
215. Lord Williamson of Horton considered that there
is no convention against rejecting an SI, but the House is "very
hesitant indeed" to do so.
He observed that the Government often responds to criticism by
the scrutiny committees without the need of a hostile motion in
Lords Committee on the Merits of Statutory Instruments
216. The Lords SI Merits Committee considers that
powers and conventions in this area are adequately codified in
each SI's parent Act and in the Companion, and that nothing
further is called for. Parliamentary scrutiny of SIs is a growth
area; the power to reject SIs gives Parliament "leverage",
and should if anything be exercised more, not less. It quoted
the Chairman of the Government's own Better Regulation Executive
in support of this view;
it is also supported by the Bar Council.
217. The Clerk of the Parliaments says, "There
is no generally accepted convention restricting the powers of
the Lords on secondary legislation."
There was once a loose convention against voting down SIs, but
no longer. The
power to reject has been used with restraint; motions are often
either couched in non-fatal terms
or withdrawn after debate.
But codifying this would not be much of an achievement.
218. The Clerk of the Parliaments explains what happens
if an SI is defeated. If it is affirmative, it may be re-laid,
though it must be at least slightly different.
If it is negative, it may be re-laid with a new title. If the
Lords rejected it again (which has never happened), the Government
could in the last resort embody it in a Bill. So he agrees with
the Wakeham report that rejection of an SI "in practice ...
would not trigger a constitutional crisis".
219. Finally, he notes that the Lords have increased
scrutiny of delegation of powers and their exercise since setting
up the Delegated Powers and Regulatory Reform Committee in 1992,
and that the power to reject informs the decision whether to delegate.
This was explicit when the Lords passed the Deregulation and Contracting
Out Act 1994 and the Regulatory Reform Act 2001, and has been
cited by the Government in debate on this Session's Legislative
and Regulatory Reform Bill. But it does not apply only to super-affirmative
procedures; it applied also, for example, to the provision for
juryless fraud trials in the Criminal Justice Act 2003.
220. The Clerk of the House of Commons agreed with
the Clerk of the Parliaments in this area.
He saw nothing wrong in the Lords rejecting an SI, unless it were
to embody a manifesto commitment.
221. Dr Donald Shell argues against codifying a convention
that the Lords do not reject SIs. He observes that:
a) it is not possible, when creating a delegated
power, to be sure how it will be used;
b) the Commons sometimes approve orders without
c) it might make the Lords less willing to agree
to delegations, which would increase the volume of primary legislation.
222. To the suggestion that rejection might be made
to depend on the views of the scrutiny committees, he responds
that the committees might not welcome this responsibility, and
that different committees might not agree among themselves. Most
SIs are now considered and reported on by the Joint Committee
on Statutory Instruments and the Lords Committee on the Merits
of Statutory Instruments; in many cases the Lords Delegated Powers
and Regulatory Reform Committee will also have scrutinised the
power under which the SI was made.
223. Lord Norton of Louth likewise argues against
codifying a convention that the Lords do not reject SIs.
He observes that:
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.
224. He agreed however that, if the Lords reject
an SI, they should give a reason.
225. Our other academic witnesses saw no cause for
government concern in this area.
Professor Bradley pointed out that government Bills routinely
give the Lords power to reject SIs; if they did not wish the Lords
to have this power, they should not put it in the Bill. Dr Russell
described the occasional defeat of an SI as "a reasonable
quid pro quo" for Parliament having no power to amend
226. Overseas, the Australian situation is closest
to our own. Both Houses have equal power over delegated legislation,
and the Senate can and does disallow orders.
In Canada, orders can be disallowed if the Standing Joint Committee
for the Scrutiny of Regulations so recommends on legal or procedural
grounds, and only if both Houses agree. This procedure has rarely
been used. But Parliament is becoming more interested in overseeing
delegated legislation, and there is a growing range of procedures
for parliamentary review, amendment and rejection of specific
kinds of order.
In India, Parliament can modify or annul any order, but this requires
the agreement of both Houses.
227. On the basis of the evidence, we conclude that
the House of Lords should not regularly reject Statutory Instruments,
but that in exceptional circumstances it may be appropriate for
it to do so. This is consistent with past practice, and represents
a convention recognised by the opposition parties.
228. The Government appear to consider that any defeat
of an SI by the Lords is a breach of convention. We disagree.
It is not incompatible with the role of a revising chamber to
reject an SI, since (a) the Lords (rightly or wrongly) cannot
exercise its revising role by amending the SI or in any other
way, (b) the Government can bring the SI forward again immediately,
with or without substantive amendment, as described by the Clerk
of the Parliaments, and (c) the power to reject SIs gives purpose
and leverage to scrutiny by the Joint Committee on SIs, and by
the new Lords Committee on the Merits of SIs. The Government's
argument that "it is for the Commons, as the source of Ministers'
authority, to withhold or grant their endorsement of Ministers'
is an argument against having a second chamber at all, and we
229. For the Lords to defeat SIs frequently would
be a breach of convention, and would create a serious problem.
But this is not just a matter of frequency. There are situations
in which it is consistent both with the Lords' role in Parliament
as a revising chamber, and with Parliament's role in relation
to delegated legislation, for the Lords to threaten to defeat
an SI. For example:
a) where special attention is drawn to the instrument
by the Joint Committee on Statutory Instruments or the Lords Select
Committee on the Merits of SIs
b) when the parent Act was a "skeleton
Bill", and the provisions of the SI are of the sort more
normally found in primary legislation
c) orders made under the Regulatory Reform
Act 2001, remedial orders made under the Human Rights Act 1998,
and any other orders which are explicitly of the nature of primary
legislation, and are subject to special "super-affirmative"
procedures for that reason
d) the special case of Northern Ireland Orders
in Council which are of the nature of primary legislation, made
by the Secretary of State in the absence of a functioning Assembly
e) orders to devolve primary legislative competence,
such as those to be made under section 95 of the Government of
Wales Act 2006 and
f) where Parliament was only persuaded to
delegate the power in the first place on the express basis that
SIs made under it could be rejected.
230. This list is not prescriptive. But if none of
the above, nor any other special circumstance, applies, then opposition
parties should not use their numbers in the House of Lords to
defeat an SI simply because they disagree with it. This would
be contrary to the fundamental conventions which govern the relationship
between the Houses, as discussed above in the context of the primacy
of the Commons. It would also defeat the purpose of delegating
the power in the first place. The defeat of the GLA Orders in
2000 was probably not an abuse of this kind; on the other hand,
the defeat of the Rhodesia Sanctions Order in 1968 probably was.
231. It would equally defeat the purpose of delegation
if the Commons were regularly to reject Statutory Instruments.
But of course they are not likely to do so.
232. In the absence of a power to amend SIs, the
most constructive way for the Lords, as the revising chamber,
to reject an SI is by motion (or amendment) incorporating a reason,
making it clear both before and after the debate what the issue
is. But, when
the Lords wish to voice concern about an SI, the Government would
like them to do so by means of a non-fatal motion or amendment,
rather than a fatal one. Non-fatal motions are quite commonly
used, and are agreed to more frequently than fatal motions. The
Government Chief Whip in the Lords told us that defeat on such
a motion is taken seriously in Government.
However the record does not altogether bear this out. We recommend
that, if the Government lose a vote on a non-fatal motion about
a Statutory Instrument, they should respond to the House in some
way, at least by Written Statement. If this became the convention,
the Lords might be more inclined to prefer non-fatal motions,
as the Government would wish.
233. The problem with the present situation is that
the Lords' power in relation to SIs is too drastic. The picture
would be very different if Parliament had power to amend SIs.
It generally does not, and we have not been asked to inquire into
whether it should, though this is a question of concern to Members
in both Houses. It should be noted that certain Acts already give
Parliament power to amend specific classes of SI.
234. There is no consensus around the Wakeham proposal
for a suspensory veto for the second chamber. As a change in the
law it is in any case outside our remit.
279 The following account relies heavily on House of
Lords Library Note 2000/001, Divisions on Delegated Legislation
in the House of Lords 1950-1999. Back
HL Hansard, 17 June 1968, Vol 293, col 321. Back
The subsequent proceedings are outside the scope of this report. Back
On affirmative instruments, the motion to approve is usually taken
first in the Commons, but there is no rule about this; it is up
to the business managers. An interesting precedent was set in
1978, when an order came to the Lords ahead of the Commons. The
Lords voted to adjourn debate on the motion to approve, pending
debate in the Commons. The Wakeham report suggested that the Lords
might do this more often (para 7.34). Back
HL Hansard, 5 December 1983, Vol 445, col 929. Back
Para 8.04. Back
HL Hansard, 20 October 1994, Vol 558, col 356. Back
HL Hansard, 4 November 1997, Vol 582, col 1339. Back
A Politeia Lecture by the Rt Hon Lord Strathclyde: Redefining
the Boundaries Between the Two Houses, 30 December 1999, pp
HL Hansard, 7 December 1999, Vol 607, cols 1261-2. Back
HL Hansard, 7 December 1999, Vol 607, col 1265. Back
Op cit, para 7.11. Back
Op cit, Recommendations 37 and 38. Back
Op cit, para 7.35. Back
Op cit, para 32. Back
22 February 2000. Back
Fifth Report of the Public Administration Select Committee, Session
2001-02, HC 494, para 80. Back
First Report, Session 2002-03, HL Paper 17, HC 171, para 23. Back
Op cit, pp 5-6. Back
Breaking the Deadlock, p 16. Back
HL Hansard, 26 January 2005, Vol 668, col 1375. Back
8 Feb 2001, 20 March 2001, 27 Jan 2003. Back
Ev 8, para 54. Back
Q 339. Back
Ev 28, paras 4-5. Back
Ev 28, para 4. Back
Q 39. Back
Ev 7, para 45. Back
Q 40. Back
Ev 32-34. Back
Ev 7, para 47. Back
Ev 28, para 7. Back
Ev 37, paras 4.3-4.4. Back
Q 80. Back
Q 60. Back
Q 60. Back
Q 62. Back
QQ 80-81. Back
Ev 60-62. Back
Q 172. Back
Q 176. Back
Q 134. Back
Q 135. Back
Ev 135-136. Back
Ev 168. Back
Ev 81, para 8. Back
Q 249. Back
Ev 85, para 42. Back
Ev 85, para 40. Back
Q 250. Back
Literally re-laying the same order, or moving the same motion,
would breach the rule of both Houses against putting a decided
question again in the same Session. The order re-laid in 1968
was cosmetically different; the same was to happen in 2000. Yet
in a similar debate in 1972, the Minister indicated that she was
receiving conflicting advice on what would be possible if the
order was defeated - which it was not. Back
Ev 86, para 43. Back
Ev 86, para 45. Back
Ev 99, para 2. Back
Q 250. Back
Ev 143, paras 5-10. Back
Ev 116; Q 342. Back
Q 344. Back
QQ 342-343. Back
Ev 155. Back
Ev 158-159. Back
Ev 152. Back
Ev 8, para 54. Back
This can be done, in the case of an affirmative instrument, by
reasoned amendment to the motion to approve, calling for specific
adjustments. There are plenty of examples of such amendments being
tabled in the Lords. In the case of a negative instrument, it
would require a reason to be attached to a "prayer",
e.g. "To move that an Humble Address be presented to Her
Majesty praying that the Order be annulled on the grounds that..."
or "and that a new Order be made providing that..."
This would be novel. Back
Q 40. Back
E.g. Census Act 1920, s. 1(2), and more recently Civil Contingencies
Act 2004, s. 27(3). Back