Summary of conclusions and recommendations
Background
1.Conventions can only govern proceedings when there is a common understanding as to their meaning—and that is no longer the case, if it ever were. We are wary of describing the House’s pattern of behaviour in relation to statutory instruments as constituting a constitutional convention at all; it might better be described as long-established practice. (Paragraph 26)
The remit of the Strathclyde Review
2.A focus on inter-House relations ignores the other, vital, balance of power that would be altered should changes be made to statutory instrument procedure in the House of Lords: the balance of power between Parliament and the Executive. By tasking Lord Strathclyde with considering the balance of power between the two Houses of Parliament, the Government focused his Review on the wrong questions. We believe that consequently it addressed the wrong issues. (Paragraph 35)
3.The Government can pass legislative proposals with greater ease and with less scrutiny if it can do so as delegated, rather than primary, legislation. It is in this context that proposals to weaken the powers of the House of Lords should be considered. (Paragraph 36)
4.We welcome the Strathclyde Review’s recognition of the many concerns that have been expressed by parliamentarians and other observers at the extent and use of delegated powers in recent years. (Paragraph 43)
5.Given the increasing concerns we and others have in respect of broad or poorly-defined powers, and the key role played by the House of Lords in the scrutiny of delegated legislation, any diminution of the House’s power to hold the Government to account over its use of delegated powers is of great concern. Weakening the House’s power to hold the Government to account for delegated legislation—making it easier for “elected Governments to secure their business in Parliament”—would increase the incentives for Governments to widen the use of delegated legislation. (Paragraph 44)
6.We recognise the primacy of the House of Commons. But it is essential that any proposals to change the means by which delegated legislation is agreed by Parliament must be evaluated not only in terms of their effect on the balance of power between the two Houses, but between the Executive and Parliament as a whole. (Paragraph 51)
7.We consider that the starting point for reviewing how Parliament scrutinises the Executive should not be how the Executive can secure its business. The focus should be on how to ensure that the actions of the Executive are scrutinised effectively and that parliamentary approval of delegated legislation—by members of both Houses of Parliament—is not a mere box-ticking exercise. (Paragraph 52)
8.We do not attempt in this report to reach a conclusion as to the proper role of the House of Lords in the delegated legislation process. It is a complicated matter which requires greater thought than a simple statement that purports to “clarify” and “confirm” the existing role of the Lords. The role of the House of Lords needs to be considered alongside the roles of the House of Commons and the Government. Full consideration needs to be given to the constitutional relationship between Parliament as a whole and the Executive. (Paragraph 56)
The Strathclyde Review
9.We believe the Government should consider the extent to which it is appropriate to be making legislative changes with significant budgetary implications through delegated legislation. The financial privilege of the Commons is already assured in relation to budget measures contained in finance bills. (Paragraph 59)
10.We do not believe the House of Lords’ rejection of the Tax Credits Regulations constituted a constitutional crisis. A single Government defeat on a statutory instrument, even one with such unusually significant financial implications, does not seem a sound foundation upon which to base significant and lasting reform of parliamentary scrutiny of delegated legislation. (Paragraph 61)
11.The Strathclyde Review put forward a single broad recommendation that would affect parliamentary scrutiny of all delegated legislation. We believe that consideration of a range of more precise measures might have addressed the Government’s concerns without recourse to such drastic measures as a statutory override power for the House of Commons. (Paragraph 62)
12.Removing or weakening the Lords’ powers over delegated legislation might encourage the Government to draft delegated powers as broadly as possible, so that secondary legislation could be used to pass measures which might otherwise face greater opposition in the Lords as primary legislation. (Paragraph 65)
13.There is a significant risk that if the Lords were to be deprived of any real power in respect of statutory instruments the impact of its scrutiny function would be diminished. (Paragraph 66)
14.If the Government could simply override the House of Lords at will in respect of delegated legislation, it would imply that secondary legislation warrants less scrutiny than primary legislation where the Lords’ significant power of delay means its wishes cannot simply be ignored. This would be particularly concerning with regard to Henry VIII powers which amend or repeal primary legislation enacted by both Houses. (Paragraph 67)
15.If the Lords’ powers over delegated legislation were to be significantly diminished then it might become more assertive when considering the delegation of powers in primary legislation. (Paragraph 68)
16.We believe that a weakening of the House of Lords’ powers over delegated legislation, in particular when unaccompanied by a strengthening of the House of Commons’ role in respect of scrutinising statutory instruments, will result in a significant shift of power from Parliament to the Executive. (Paragraph 69)
17.Option 1 is clearly unacceptable. It would significantly curtail the capacity and responsibility of Parliament to oversee the Executive. (Paragraph 72)
18.We are not persuaded by the Strathclyde Review’s reasons for rejecting a way forward based on convention or established practice, not least because elements of the relationship between the two Houses have been effectively governed in such ways for many years. Option 2 would not, however, address the wider concerns we have expressed earlier in this report. Those concerns cannot be addressed by any proposals that consider the powers of the House of Lords in isolation. (Paragraph 76)
19.If the Lords’ powers over delegated legislation were sought to be constrained by statute without proper consideration of the wider context, then we would expect the following matters to be addressed in detail by both Parliament and the Government: (Paragraph 85)
- What steps would be taken to ensure that delegated powers proposed in primary legislation are set out in appropriate detail, sufficiently narrow in scope, and restricted to matters of detail rather than of principle;
- Whether the exercise of Henry VIII powers, which permit the amendment or repeal of primary legislation, should still be subject to a Lords veto or to a modified procedure;
- Whether the Lords’ powers would be intended to require the Government to reconsider its stance following Lords’ opposition to an instrument, or simply to prompt reconsideration by the House of Commons;
- What the advantages and disadvantages would be of incorporating a fixed period of delay prior to Commons reconsideration should the Lords reject a statutory instrument;
- Whether and how Commons procedure would be altered to ensure that a statutory instrument rejected by the House of Lords would be given an appropriate degree of scrutiny on reconsideration;
- Whether any new procedures would apply only to powers delegated in the future, or whether they would apply to powers already delegated under an assumption that they would be subject to bicameral approval;
- Whether and how Commons financial privilege would be specifically extended to cover statutory instruments.
The way forward
20.Whilst the Strathclyde Review might be treated as a starting point for further consideration of the use and scrutiny of delegated legislation, it does not in our view provide sufficient basis for changing how Parliament holds the Executive to account. (Paragraph 86)
21.We trust that both Houses of Parliament will take this opportunity to give proper consideration to the whole system of delegated legislation, with a view to ensuring that Parliament retains and exercises appropriate oversight over its legislative authority. It is equally important that Government recognises the need to exercise restraint in its use of delegated powers, and takes care to ensure that any proposals for delegated powers are appropriately detailed and narrow in scope. (Paragraph 89)
22.We recognise the leading role that elected members of the House of Commons play in holding the Government to account. Consequently, effective scrutiny of delegated legislation depends as much on the House of Commons as the Lords. We do not seek to prescribe how Parliament and the Government should take forward a more comprehensive review of delegated legislation. Both Houses of Parliament, however, either together or separately, need to play an active role in considering how powers should be delegated appropriately in primary legislation, how those powers should be exercised by Government and the way in which both Houses scrutinise and approve delegated legislation. (Paragraph 90)
23.The use and scrutiny of delegated legislation is at the heart of the delicate balance of power between Parliament and the Executive. Change must be the result of careful and thorough consideration, and not undertaken in haste or for the wrong reasons. (Paragraph 93)