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Lord Peston: My Lords, I am not sure that the noble Lord is referring to the right recommendation when he comments on Recommendation 41 rather than Recommendation 42. There is a distinction between draft secondary legislation and what I take to be full secondary legislation.
Lord Goodhart: No, my Lords. Recommendation 41 refers to the affirmative resolution procedure; Recommendation 42 refers to the negative procedure. Recommendation 42 is less clear. It states:
- "the annulment should not take effect for three months and could be overridden by a resolution of the House of Commons".
There is a case for reducing power over statutory instruments from absolute veto to power to delay for a period of, say, one year, in line with our powers over primary legislation. However, there are arguments the other way for saying that, if the Government want to override the veto of your Lordships' House, they should do so by primary legislation. I can see no arguments for the proposal as it stands in Chapter 7.
There are a number of good things in that chapter. I agree with Recommendation 35, that there should be, as many noble Lords have said, more parliamentary scrutiny of secondary legislation and that your Lordships' House should make a strong contribution to that scrutiny. I agree with Recommendation 36, that particularly significant statutory instruments should be published in draft for consultation before being laid before Parliament. To a considerable extent that is already happening, especially where statutory instruments are intended to implement new primary legislation and are published for consultation while that legislation is passing through Parliament. I agree with Recommendations 37 and 38, for a sifting mechanism to look at the significance of statutory instruments and to draw attention to those which merit debate.
I regret the report's conclusion that there is no case for making it possible to amend statutory instruments once they are laid before Parliament. I agree with the noble Lord, Lord Peston, that there should be no general power to allow amendment of statutory instruments--that would defeat the purpose of getting them through Parliament relatively quickly and efficiently--but there is much to be said for the proposal of the noble Lord, Lord Norton of Louth, to permit conditional amendments to statutory instruments in order that your Lordships' House could reject the statutory instrument but explain the terms on which it would consent to it if re-laid.
Going beyond that, in the relatively short time that I have been a Member of your Lordships' House, I have become increasingly convinced that there is a need for a kind of legislation which is intermediate between the affirmative resolution procedure and primary legislation. That would perhaps be similar to the
super-affirmative statutory instrument discussed by the noble Lord, Lord Alexander of Weedon, in his constructive and thoughtful speech.The affirmative resolution procedure we now have excludes amendments and usually means no more than 20 minutes of debate in the dinner hour or at the end of the day's business. Primary legislation, by contrast, involves the whole panoply of Second Reading, Committee stage, Report stage and Third Reading--and the allocation of the Committee stage to the Moses Room in some cases does little to shorten the procedure. The Jellicoe procedure appears to have been totally abandoned. An intermediate procedure would be appropriate both for particularly important statutory instruments and for minor and uncontroversial Bills, such as many of the Law Commission Bills.
As I have made clear, I disagree strongly with Recommendations 41 and 42. The report was published before your Lordships' House rejected the London election rules. The report assumes in paragraph 7.11 that there was a convention that your Lordships' House did not reject statutory instruments. Maybe now the authors of the report would say something different. Be that as it may, we on these Benches will fight as strongly as we can to preserve the unfettered right of your Lordships' House to reject secondary legislation.
4.45 p.m.
Lord Mackay of Ardbrecknish: My Lords, we have had a very useful and interesting debate on the immensely important issue of secondary legislation. As all noble Lords who have spoken have said, we are deeply grateful to my noble friend Lord Dean of Harptree for introducing it.
I have reminded the House on a number of occasions that, although it is a long time ago, I was one of the founder members of the Delegated Powers Scrutiny Committee, as it was initially called. After a very short membership, I was whisked off to the Government. I then became a gamekeeper after being a poacher--or perhaps it was the other way round; I am not sure. I certainly noticed the reminder of the noble and learned Lord, Lord Simon of Glaisdale, about the Child Support Agency and the secondary legislation that surrounded it. Clearly my spell on the Delegated Powers Scrutiny Committee did not do me as much good as it should have.
The truth is that all governments tend to produce skeleton Bills, or parts of Bills, which allow Ministers--or, more truthfully, civil servants--to draw up the rules later. Indeed, it should be not only the opposition parties and government Back-Benchers but Ministers themselves who should want to reduce what is, in reality, legislation by officials. Parliament in theory sets out the principles, but it is in government departments that the rule books are written--rule books which can close shops, slaughterhouses and schools; which can pile costs and bureaucracy on business; and which can put jobs at risk in areas such as, if I may take a random example, the pig industry.
There is cross-party agreement that this development needs to be checked. Over time, there have of course been steps taken to deal with affirmative, negative and general instruments. Parliament has tried to build up its defences against the abuse of secondary power. We have had the Commons Standing Committee on Delegated Legislation, the Joint Committee on Statutory Instruments, and now we have in your Lordships' House the Delegated Powers and Deregulation Committee. These institutions are useful. In particular, your Lordships' Delegated Powers and Deregulation Committee does an outstanding job in drawing attention to attempts by government to push secondary powers too far and to evade scrutiny on the face of legislation.
All governments have so far heeded notes of the Delegated Powers and Deregulation Committee. There was a recent unwise attempt by the noble Lord, Lord Bassam of Brighton, to tough it out on proceedings at general elections, but wisdom overtook the Government and the noble Lord brought forward amendments to agree with the Delegated Powers and Deregulation Committee. That is quite right. At the risk of incurring, perhaps not the wrath of but a row from the noble Lord, Lord Barnett, I venture to suggest that advice from this committee is on the way to becoming a convention of the way we deal with legislation. We in this House and in the other place should expect obedience from all governments to the recommendations of the committee.
Despite these checks, problems abound. If I can remind the House, the Pollution Control Act was, in its original form, the worst example of a skeleton Bill ever to come to the House. Now we have a growing swathe of late amendments to big Bills, some of which contain enabling powers. The Delegated Powers and Deregulation Committee commented on this in its 10th report. In regard to the government amendments at the Committee stage of the Financial Services Bill, it stated:
- "the increasing speed with which the Committee is being asked to work ... may on occasion mean that the Committee's report on amendments is published after the House has considered the amendments".
We are increasingly under pressure of time and weight of legislation. There is a weakness in the other place in the scrutiny of legislation. Your Lordships need only read--dare I say it--the Committee stages of Bills before they come here. They may sometimes occasion a laugh but they do not occasion much wisdom. There is also the sheer weight of legislation. The 1997-98 Session was the longest in history. In this Session we have a huge programme of Bills--the fullest programme that many can remember. And we have a huge number of late amendments: 1,000 to the GLA Bill; 500 to the Local Government Bill; and some 600, I understand, to the Financial Services and Markets Bill. Those are all problems which beset this
Government as they beset to an extent the last government. We have to try to find a way to deal with them, and in particular secondary legislation.Running through the debate has been reference to the report of the Royal Commission chaired by my noble friend Lord Wakeham, whom I am pleased to see in his place. Most noble Lords made reference to Chapter 7 of the report on secondary legislation. I agree with many of the recommendations in that chapter. I agree with noble Lords, in particular the noble Lord, Lord Barnett, who said that we could move ahead now with some of the recommendations. The sifting committee proposal in Recommendations 37 and 38 has met with approval around the House and could be introduced. I have some reservations. I shall come to my principal reservation on Chapter 7 later.
We all agree that secondary legislation is not open to sufficient scrutiny. We need to discuss it perhaps more often. Do we, or do we not, need to be able to amend it? We need to be able if we wish, and on rare occasions, to reject it.
Better accountability not only involves your Lordships and Members of the other place having a close look at secondary legislation but also must involve us linking with outside bodies and organisations which will be affected by the detail of it. My noble friend Lord Alexander of Weedon spoke about that issue.
I was surprised that your Lordships dwelt largely on secondary legislation brought in after--sometimes a long time after--the primary legislation on which it was based. At this stage, perhaps I may throw into the pot consideration of what we do about the powers in the primary legislation as it goes through your Lordships' House. I have a few suggestions. Where important regulations are to be brought in under a Bill, draft regulations should be available to the House before the Committee stage. In a properly planned world that should be possible. Ministers should give as much attention to the small print as to the soundbites of law making. It is the small print that makes or breaks businesses and jobs.
If draft regulations are not available, either House should be increasingly reluctant to proceed to Committee stage or should declare its right to reject outright late presented regulations. Where draft regulations are presented after Committee or secondary powers added into a Bill after Committee, that part of the Bill should normally be recommitted so that we can have a Committee-type discussion and not a Report-type, or, even worse, a Third Reading-type, of discussion.
In some circumstances it might be sensible to lay the draft regulations as amending schedules to the Bill. Your Lordships may remember that for a variety of reasons I suggested this to the Government in the Referendums (Scotland and Wales) Bill in the summer of 1997. Indeed, the Government took that on board. Therefore while the Bill was still going through as primary legislation, we were able to discuss the detail
of the secondary legislation which dictated how the referendums would work and were of great importance and interest.Your Lordships' House must retain the power to reject regulations. I shall come to that in a moment. As my noble friend Lord Campbell of Alloway pointed out, we could continue to use non-fatal Motions to point to where regulations need amendment, but your Lordships will recall that the Government ignored that procedure on the massive vote on beef-on-the-bone regulations. I do not say this as a condemnation of this Government, but non-fatal resolutions do not strike much terror into the heart of government of any party.
Both Houses, possibly in the context of the Joint Committee we should like to see put forward under stage two, should look at ways to enable amendment of secondary legislation. However, I agree with the noble Lord, Lord Peston, that it might be difficult to define a way forward for amending secondary legislation. It would need a lot of time and staff, and perhaps work off the Floor of the House, with evidence from parties to be affected, and complex mechanisms for reaching agreement between the two Houses. I listened with care to the noble Lord, Lord Dahrendorf, who suggested that we should perhaps look at the Welsh Assembly for an example of how to do that; and I shall certainly do that.
As regards the recommendations in the report of the Royal Commission that if we reject secondary legislation the House of Commons can in two or three days' time simply agree with it again and that is it, I believe that that would be totally unsatisfactory. I agree entirely with the noble Lord, Lord Goodhart, that if that power had been in place when your Lordships decided to reject the London elections measure, two days later the House of Commons would simply have rubber-stamped the government position and the noble Lord, Lord Goodhart, and myself would never have had meetings with the Government Chief Whip and his two colleagues and negotiated what I think was a sensible agreement and a way out. We were fortunate then because the Representation of the People Bill was there as a vehicle. I accept that. But I was not blind to the fact that there was a vehicle available. Nor, indeed, was the noble Lord, Lord Goodhart.
We have to be extremely careful about going down the road my noble friend Lord Wakeham suggests in these two recommendations. I think that government of any party would not be too unhappy about that recommendation. That is why I believe that we should retain our right to reject secondary legislation, perhaps doing so in a way which makes clear why we are rejecting it and what we should like to see changed; and the Government can then negotiate and come back with an amended regulation which your Lordships would then pass. As the noble Lord, Lord Goodhart, said after the London orders debate, I think that your Lordships should use that power--as my party would--very sparingly indeed.
A number of noble Lords have referred to the remarks of the noble and learned Lord, Lord Simon of Glaisdale, in a number of debates. However, I want to
close with the noble and learned Lord's words on Third Reading of the Representation of the People Bill on 6th March 2000. At col. 817 of the Official Report the noble and learned Lord said;
- "I trust that henceforth there will be no question but that your Lordships have power to examine, scrutinise and challenge secondary legislation".
4.57 p.m.
The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, I join with every speaker in the debate and thank the noble Lord, Lord Dean of Harptree, for raising the matter and making such an excellent speech. As one noble Lord said, it set the tone. I thank all noble Lords who have participated in the debate. It has been a useful and illuminating debate in getting Members of this House to express views on the issue of how secondary legislation should be dealt with.
A range of suggestions was made. The noble Lord, Lord Dean of Harptree, said, "Let's get on with the Royal Commission's proposals and propose a way to amend secondary legislation". My noble friend Lord Peston said, "We cannot amend, but let us get on with some proposals in relation to amendment". The noble Lord, Lord Alexander, gave effectively five suggestions some of which are in the commission's report and some are not. The noble Lord, Lord Dahrendorf, directed us to Wales and said, "See what the National Assembly for Wales has done". The noble Lord, Lord Campbell of Alloway, said, "Ignoring the fact that the House of Commons would have to be involved in some way, let us just get on with it ourselves. Let us think of a way of procuring delay". The noble and learned Lord, Lord Simon of Glaisdale, said, "Don't do anything. Let us just rely upon our powers to reject provisions of secondary legislation".
The noble Lord, Lord Barnett, wrests credit away from the noble Lord, Lord Wakeham, for the proposal for three months' delay. He says that this is his idea and that of the noble Lord, Lord Peston. He says, "Let's get on with it" but equally says that we should cherry pick. The noble Lord, Lord Norton of Louth, rightly says that we should act in co-operation with the other place. The noble Lord, Lord Goodhart, rejects some of the proposals of the noble Lord, Lord Wakeham, but accepts others. Similarly, the noble Lord, Lord Mackay of Ardbrecknish, supports the idea of amendment. I simply go through that to indicate that there is plainly no consensus at present as to how one should deal with the issue--
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