Joint committee on Conventions

Joint committee on Conventions Report

6 Secondary legislation

190. The Committee's remit refers to "conventions on secondary legislation", but does not say what conventions are intended. However the following paragraph from the Lords Companion provides a helpful starting point:

General powers of the House over delegated legislation

8.02 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.[405] The House of Lords has only occasionally rejected delegated legislation.[406] The House has resolved "That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration".[407] Delegated legislation may be debated in Grand Committee, but must return to the floor of the House if a formal decision is required. [emphasis added]

405 Except in the very small number of cases where the parent act specifically provides for such amendment, e.g. Census Act 1920.

406 The last two instances of the rejection of an affirmative instrument were 18 June 1968: Southern Rhodesia (United Nations Sanctions) Order 1968; and 22 February 2000: Greater London Authority (Election Expenses) Order 2000. A motion for an address praying against a negative instrument (Greater London Authority Elections Rules 2000) was agreed to on 22 February 2000.

407 LJ (1993-94) 683, HL Deb. 20 October 1994 cols 356-83.

191. The key sentences are those in italics. The only issue between the Houses on delegated legislation is whether the Lords can frustrate the will of the Commons by voting down an instrument which the Commons has, or would have, supported. It is often suggested, mostly from the Government side, that there is a convention that the Lords do not reject Statutory Instruments (SIs). In the Companion, this appears in the form of the statement that they have only occasionally done so. This is incontrovertibly true, but arguably a very weak codification.

192. Assertions that it would be constitutionally wrong for the House of Lords to reject delegated legislation can be found in Lords debates since the 1950s[279], but the matter came to a head in 1968 over an Order to implement United Nations sanctions against Rhodesia.[280] Lords reform was at a critical point, and an Election was in prospect. In debate, Earl Jellicoe, as Deputy Leader of the Opposition, asserted that the situation was "exceptional", and that rejecting the Order would provide "a period for reflection". Lord Wade (Liberal) asserted a constitutional convention against rejection. Lord Rowley (Labour) gave it a political slant: "a kind of convention has developed that ... the built-in Conservative majority in your Lordships' House would not vote against an Order put forward by a Labour Government". The Marquess of Salisbury (former Conservative Leader) brought the mandate into it; the people's views on the issue were unknown, and he believed they were against sanctions.

193. Lord Carrington, Leader of the Opposition, argued in favour of providing "a period of delay for reflection". He asserted that, if the House defeated the motion to approve, the Order would nonetheless remain in force for long enough for the Government to re-lay it. If the Commons approved it again, the Lords should back down. The Leader of the House, Lord Shackleton, expressed doubts, but this is in fact what happened; the Order was defeated, but an essentially identical Order was made and four weeks later the Lords approved it. However Lord Carrington's previous warning of constitutional crisis also came true; cross-party talks on Lords reform were broken off and the Government took unilateral action.[281]

194. Between 1983 and 1991 the Lords never once divided on a motion fatal to an SI. Instead, there were votes on critical but non-fatal motions or amendments. On one such occasion in 1983, Lord McCarthy for the Opposition explained: "It is not our policy to invite the House to cancel, defy or reject regulations of this kind which are passed by the Lower House.[282] What we are asking the House to do is something that we understand is quite normal and customary practice - that is, to express a view".[283] As the Companion says, such motions if carried have "no practical effect".[284]

195. By 1994 it was beginning to be asserted as a convention not merely that the Lords did not defeat SIs, but that they did not even divide against them. In response, Lord Simon of Glaisdale initiated a debate on the proposition "That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration".[285] The motion was carried without a vote, and is recorded in the Companion.

196. In opening this debate, Lord Simon offered three categories of SI on which in his view the Lords would be justified in voting: (a) an SI which "goes beyond nuts and bolts and trenches on policy" - the sort of Instrument which since 2003 might be flagged up by the Lords Select Committee on the Merits of SIs, (b) an SI which the Joint Committee on SIs finds to be an "unusual or unexpected use of the power", (c) a Deregulation (now Regulatory Reform) Order.

197. Following this debate, the House began to divide again on potentially fatal motions or amendments. But the vote tended to be precipitated by the Liberal Democrats or a backbench or crossbench peer, who might expect to lose, not by the Opposition who would always run the risk of success. This suggests that there was indeed a convention, but at the political rather than constitutional level, and against winning a division rather than against dividing. In November 1997, soon after the change of Government, Baroness Hollis of Heigham, replying as Minister to a Liberal Democrat prayer to annul, referred to "our consistent position in Opposition when we always abstained on such matters".[286] And Lord Strathclyde, addressing Politeia in November 1999 as Opposition Leader in the House of Lords, just after enactment of the House of Lords Act, referred to a convention "agreed between the front benches of the major parties 20 years and more ago - but, it is important to note, never accepted by the Liberal Democrats or the Cross-benchers. That is that the Opposition should not vote against the secondary legislation of the Government." [287]

198. Lord Strathclyde added, "I declare this convention dead." This was repeated in the House by the Deputy Leader of the Opposition, Lord Mackay of Ardbrecknish, in a debate on delegated legislation in December 1999. He cited the "Jay convention" that the part-reformed House had increased authority.[288] In reply, the Minister (Lord Falconer of Thoroton) denied that anything had changed; the convention "that this House should not take on the elected Chamber" applied to SIs, and still applied, pending the publication of the Wakeham report.[289]

199. The Wakeham report devoted a whole chapter to delegated legislation. It said, "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".[290]

200. The Wakeham report saw SI scrutiny as a growth area for a reformed House of Lords. It recommended a 'sifting' mechanism should be established.[291] The Lords responded by setting up the Select Committee on the Merits of Statutory Instruments. But the report also recommended changing the Lords' powers in this area, from an absolute veto to a suspensory veto. It did so with a view not to reinforcing a convention under threat, but rather to replacing a power too drastic to be used with "powers which it can actually exercise, and which would require the Government and the Commons to take some positive action".[292] The Government accepted this recommendation in Completing the Reform.[293]

201. In apparent fulfilment of what Lords Strathclyde and Mackay had said, the Lords rejected an affirmative instrument and a negative instrument in 2000,[294] the Conservatives and Liberal Democrats voting together to defeat the Government. The Instruments concerned elections to the new Greater London Authority (GLA).

202. The Commons Public Administration Committee came to this issue after these votes, in The Second Chamber: Continuing the Reform. In its view the votes showed that the absolute veto was capable of being used, and should therefore stay. [295] The Joint Committee on House of Lords Reform noted this difference of opinion, and deferred the issue pending decisions on composition.[296] Following the failure to reach such decisions, the Hunt report included the votes in 2000 in its list of occasions when the Lords had challenged conventions, and adopted the Wakeham report's recommendation.[297] On the other hand, Breaking the Deadlock recommended no change.[298]

203. In the Lords debate on the Hunt report on 26 January 2005, Lord Strathclyde used more moderate language on this subject than he had in 1999. He repeated that the convention against rejecting SIs was only a Labour-Conservative convention; but, far from declaring it dead, he said it had been "surprisingly robust over the decades".[299] In fact, between the votes on the GLA Orders in 2000 and the end of Session 2004-05, the Lords divided 9 times on motions potentially fatal to an SI. On three of these occasions the motion (in each case a prayer to annul) was moved from the Opposition frontbench.[300] On all three occasions, the Liberal Democrats voted with the Government, so it may be that the Opposition knew they ran little risk of defeating the SI in question.

Evidence

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."[301] Lord Norton of Louth called this "an absolutely atrocious statement in the best Jim Hacker or Sir Humphrey style".[302] 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'.[303]

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.[304]

206. The Government endorse the Wakeham recommendation to reduce the Lords' power in this area.[305] Pending such a change in the law, they commend the use of non-fatal motions.[306] Lord Grocott assured us that defeat on such a motion is taken "very seriously".[307]

207. We asked the Government how they had in fact responded to the seven such motions passed by the Lords since 1997. The answer[308] 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.[309] 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".[310]

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.[311]

210. In oral evidence, Lord Strathclyde said, "we do not (with one exception) defeat secondary legislation".[312] 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.[313]

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.[314] He now sees the power of rejection as a "long-stop".[315]

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.[316]

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.[317]

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".[318] However the Liberal Democrats did not join Lord Strathclyde in regretting the votes against the GLA Orders in 2000.[319]

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.[320] He observed that the Government often responds to criticism by the scrutiny committees without the need of a hostile motion in the House.[321]

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[322]; it is also supported by the Bar Council.[323]

Clerks

217. The Clerk of the Parliaments says, "There is no generally accepted convention restricting the powers of the Lords on secondary legislation."[324] There was once a loose convention against voting down SIs, but no longer.[325] The power to reject has been used with restraint; motions are often either couched in non-fatal terms[326] or withdrawn after debate.[327] But codifying this would not be much of an achievement.[328]

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.[329] 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".[330]

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.[331]

220. The Clerk of the House of Commons agreed with the Clerk of the Parliaments in this area.[332] He saw nothing wrong in the Lords rejecting an SI, unless it were to embody a manifesto commitment.[333]

Academic witnesses

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 debate;

c) it might make the Lords less willing to agree to delegations, which would increase the volume of primary legislation.[334]

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.[335] 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.[336]

225. Our other academic witnesses saw no cause for government concern in this area.[337] 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 them.

Overseas

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.[338] 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.[339] In India, Parliament can modify or annul any order, but this requires the agreement of both Houses.[340]

Conclusions

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' actions"[341] is an argument against having a second chamber at all, and we reject it.

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.[342] 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.[343] 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.[344]

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

280 HL Hansard, 17 June 1968, Vol 293, col 321. Back

281 The subsequent proceedings are outside the scope of this report. Back

282 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

283 HL Hansard, 5 December 1983, Vol 445, col 929. Back

284 Para 8.04. Back

285 HL Hansard, 20 October 1994, Vol 558, col 356. Back

286 HL Hansard, 4 November 1997, Vol 582, col 1339. Back

287 A Politeia Lecture by the Rt Hon Lord Strathclyde: Redefining the Boundaries Between the Two Houses, 30 December 1999, pp 9-10. Back

288 HL Hansard, 7 December 1999, Vol 607, cols 1261-2. Back

289 HL Hansard, 7 December 1999, Vol 607, col 1265. Back

290 Op cit, para 7.11. Back