Delegated Legislation and Parliament: A response to the Strathclyde Review
Chapter 1: Introduction
1.On 26 October 2015, the House of Lords considered the Draft Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015. The Regulations altered the thresholds at which various tax credits could be claimed, and the rates at which various tax credits were withdrawn. After three divisions on amendments to the motion to approve the Regulations, the House agreed to decline to consider the Regulations until certain conditions were met by the Government.1 Both in the run up to and aftermath of the vote there was considerable, and occasionally heated, debate as to the exact nature of the conventions and established practice governing the Lords’ powers over delegated legislation, the extent to which financial privilege applies to delegated legislation, and whether the motion agreed by the House was ‘fatal’ or not.
2.Following the vote, the Government asked Lord Strathclyde, a former Leader of the House of Lords, to conduct a review into the relationship between the two Houses in relation to secondary legislation. John Penrose MP, Parliamentary Secretary in the Cabinet Office, told the House of Commons on 4 November that:
“By long-standing convention the House of Lords does not seek to challenge the primacy of the elected House on spending and taxation. It also does not reject statutory instruments, save in exceptional circumstances …
The purpose of the review is to examine how to protect the ability of elected Governments to secure their business in Parliament in light of the operation of these conventions.
The review will consider in particular how to secure the decisive role of the elected House of Commons in relation to its primacy on financial matters, and secondary legislation.”2
3.The Strathclyde Review was published in December 2015 and set out three options:
Option 1: to remove the House of Lords from statutory instrument procedure altogether.
Option 2: for the House of Lords to pass a resolution or new Standing Orders setting out how it will use its powers in relation to statutory instruments and to “revert to a position where the veto is left unused”.
Option 3: to set out in statute a procedure whereby the Commons can insist on the passage of secondary legislation, in effect overriding the House of Lords.
The Review recommended that option 3 be taken forward by the Government.
4.Part of this Committee’s terms of reference is to “keep under review the operation of the constitution”. The issues raised in the Strathclyde Review are of clear constitutional importance, affecting as they do the relationship between the two Houses of Parliament and, crucially, the balance of power between Parliament and Government. In this report we first set the parliamentary scrutiny of delegated legislation in context. We then turn our attention to broader issues surrounding the Review’s remit, before setting out our views on the three options set out in the Review.
1 HL Deb, 26 Oct 2015, cols 976-1042 . The final motion is reproduced below (see paragraph 19).
2 See Cabinet office, Strathclyde Review: Secondary Legislation and the primacy of the House of Commons, Cm 9177, December 2015, Appendix A, p 25: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/486790/53088_Cm_9177_Web_Accessible.pdf [accessed 15 March 2016]