Statutory Instruments (Amendment) Bill
104.Lord Thomas of Gresford’s private member’s Bill, the Statutory Instruments (Amendment) Bill, seeks to provide the House of Lords with a mechanism to encourage the House of Commons to re-consider a draft affirmative statutory instrument (SI) based on concerns raised by the Lords. It allows the House of Lords to agree a motion expressing concerns about a draft affirmative SI, whether or not the House of Commons has already approved the instrument. The Commons then has a choice. It may either:
(a) reject those concerns, in which case the Lords may either approve or reject the draft SI in the usual way; or
(b) request that the Minister amend the draft SI. The Minister must then do one of the following: (i) withdraw the SI without replacement, (ii) withdraw it and replace it with a revised version, or (iii) withdraw it and relay the same version. The Lords would then consider the relaid SI in the usual way, but could not use the ‘think again’ mechanism a second time.
105.In our report Government by Diktat: A call to return power to Parliament, we noted: “secondary legislation cannot be amended and so the two Houses have only an “all or nothing” choice—to accept or reject the legislation in its entirety, even if members of either House may wish to object only to parts of an instrument”.31 This Bill provides an “intermediate” option, and we note the principle of such an option was supported by the Delegated Powers and Regulatory Reform Committee in their report Democracy Denied? The urgent need to rebalance power between Parliament and the Executive.32
106.We welcome the opportunity the Bill provides for discussion of this issue, which is fundamental to Parliament’s scrutiny of government legislation, and look forward to the debate on second reading.
107.We also note that clause 2 of the Bill is intended to codify the existing guidance relating to the correction of minor errors in SIs currently set out in Statutory Instrument Practice.33
31 SLSC, Government by Diktat: A call to return power to Parliament (20th Report, Session 2021–22, HL Paper 105), paragraph 18.
32 Delegated Powers and Regulatory Reform Committee, Democracy Denied? The urgent need to rebalance power between Parliament and the Executive (12th Report, Session 2021–22, HL Paper 106), para 33.
33 The National Archives, ‘Statutory Instrument Practice’ (November 2017): https://www.legislation.gov.uk/pdfs/StatutoryInstrumentPractice_5th_Edition.pdf [accessed 4 September 2024].