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Statutory Instruments

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

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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.

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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

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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 to 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 to 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

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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".

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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 law-making 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

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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 recommendations 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

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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 laid 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

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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

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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

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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

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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

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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 long-standing 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.

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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.

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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 light 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

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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 all of us. Some of the Members would not be very good.

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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.

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