Statutory Instruments (Amendment) Bill [HL]

Committee

Clause 1: Conditional amendments

Amendment 1

1: Clause 1, page 1, line 5, after “withheld” insert “for forty days” Member’s explanatory statement This amendment and another in the name of Baroness Finn would ensure that a Statutory Instrument which is challenged by the House of Lords under section 1 can only be withheld for a maximum of forty days, after which it shall be approved.

My Lords, in moving this amendment, I start by setting out the Official Opposition’s broad approach to the Bill. We wholeheartedly support the noble Lord, Lord Thomas of Gresford, in his desire to improve scrutiny of secondary legislation. We agree that a “think again” power might be a useful additional tool for Parliament when considering secondary legislation.

Approximately 3,500 statutory instruments are made each year, with Parliament considering around 1,000 of them. Governments are increasingly using statutory instruments to carry on their business, and it is only right that Parliament has the appropriate tools to scrutinise secondary legislation. Indeed, Conservative Ministers have previously sought to introduce a similar power, on which my noble friend Lord Strathclyde did some excellent work. We support the improved scrutiny of secondary legislation and have tabled a number of constructive amendments to probe the noble Lord’s intentions and understand how the Bill would work in practice

On my Amendments 1 and 2, the Bill as drafted would require a Minister of the Crown to table a Motion in the other place when your Lordships’ House passes a Motion to withhold approval of a statutory instrument on the grounds that the Minister should consider amending it. Our amendments would limit the length of time the House of Lords could withhold approval of a statutory instrument to a maximum of 40 days.

Were your Lordships’ House to prove overzealous in the use of the new “think again” power, this could run the risk of clogging up the Order Paper in the other place, hindering that House’s ability to effectively manage its own business. I understand the concern of the noble Lord, Lord Thomas, that regret Motions in your Lordships’ House have no legal effect and are thought by some to be a waste of time, but with this amendment we are testing whether it is appropriate for your Lordships’ House to have the ability to trigger large numbers of debatable Motions in another place. We seek to understand more fully what the implications of that new power might be.

My Lords, the noble Lord, Lord Thomas of Gresford, will know that, as I explained when I spoke at Second Reading, as the immediate past chair of the Secondary Legislation Scrutiny Committee, I am very concerned indeed by the way statutory instruments are dealt with, whichever Government are in power. We have on many occasions put forward suggestions as to how this could be settled in a satisfactory manner.

At the moment, we have statutory instruments which are badly drafted. There is no mechanism whereby, once laid, they could be amended. On one occasion, the last time the Labour Party was in power, I persuaded a Minister to withdraw an instrument and lay it again. That should not be necessary. There should be some mechanism whereby statutory instruments can be amended.

There are a number of other criticisms. Perhaps the most important is that Explanatory Memoranda should actually explain. Many is the occasion when the Explanatory Memorandum seems to try to explain the inexplicable by repeating the wording of the statutory instrument, as if that was an explanation. Then we have statutory instruments without proper impact assessments. So I warmly welcome the way the noble Lord is approaching this subject.

I say to my noble friend Lady Finn that her route, of tabling amendments to make the Bill more acceptable by putting us on the same basis as the House of Commons so that both Houses have powers to improve the quality of secondary legislation, can only be a step in the right direction. I anticipate that the Minister may find ways to make it no longer possible to support the Bill, which I would greatly regret. Therefore, it is very much up to us all to amend the Bill so that it becomes more acceptable, whichever Government are in power, so I warmly support my noble friend.

My Lords, in the light of what the noble Lord, Lord Hunt, has said, I do not wish to say anything about the urgent need for reform. Clarifying the use of the word “may” via Amendment 3 is sensible. You do not want to leave any dispute about it because “may” often means “must”, at least to a lawyer.

However, I have concerns about the effect of the other two amendments. First, given the speed at which statutory instruments proceed, giving the House power to delay for only 40 days might mean that a Minister will shrug his shoulders and say, “So what?” Secondly, it seems to me that if the procedure in subsection (2) is to be followed, then “a Minister must” is completely right, as is the use of “must” in line 16. The “must” in subsection (2) is right because you want to ensure that the Minister does something; it should not be at his discretion.

In discussions when the result of the last election was more speculative, one picked up the feeling in the House that some people would be happy to see the procedure changed so that there was proper scrutiny. But, as it currently stands, the statutory instrument procedure is the most wonderful tool for a Government, because it enables them to avoid lengthy—in my view, sometimes wholly unnecessarily lengthy—debates in the House. Unless we can make the statutory instrument procedure work more effectively in the manner suggested by this Bill, it seems to me that we are steadily eroding the power of this House to properly examine important legislation. One has only to look at something such as the Product Regulation and Metrology Bill. I completely understand why the Government wanted that to be a framework Bill, because the procedures of the House make it impossible to do it by primary legislation, but if we cannot change our procedure for primary legislation, we have to change the procedure for secondary legislation. Therefore, I support one of the amendments in this group, but not the other two.

My Lords, I am most grateful to both the noble Lord, Lord Hunt, and the noble and learned Lord, Lord Thomas of Cwmgiedd, for their support. They have really said everything that I could say about the simple provision that is being put forward. I just say that the amendments are really misconceived. If the second amendment, to put “may” for “must” in subsection (2), were passed, it would mean that the Minister would have discretion not to bring the matter before the House of Commons at all, and that would be the end of it: after 40 days, nothing happens and the provision goes through unamended, with all its faults.

The ironic thing is that the noble Baroness, Lady Finn, whom I am very grateful to have had some conversations with, can defend her position only on the basis that it might possibly, at some future stage, gum up the works in the House of Commons. I think that is very unlikely, having regard to the number of regret Motions that we hear at the moment, but what about the waste of time in this House? What about all those meetings of the Secondary Legislation Committee and of the Delegated Powers Committee, on which I have served on a number of occasions? What about the time that is spent in the Moses Room discussing these matters, and in this Chamber, when there are regret Motions, and nothing happens at the end of it? To accept Amendments 1 and 2 would make a nonsense of any type of reform at all and we would be back at the beginning.

As for Amendment 3, putting “must” for “may” in subsection (5), it really makes no difference: if the Minister lays the matter before the House, the House has to consider it. Whether it is “may” or “must” really does not matter, but what does matter in subsection (5), and the purpose of it, is to make it quite clear that there would be no ping-pong procedure following from it; that there is only one possibility, one opportunity to question the instrument that has been laid by the Minister, and that once that opportunity has been exhausted and the matter comes back here, amended or unamended, the procedure cannot be gone into once more. That is the whole purpose of subsection (5). As I say, I am perfectly relaxed about whether it is “may” or “must”: if the matter is put before the House, it is going to be heard in any event.

So these amendments really do not do anything to clarify the Bill, and do not assist in preventing the theoretical gumming up of legislation in the House of Commons, as has been suggested as the only reason that these amendments have been tabled, and I ask the noble Baroness to withdraw Amendment 1.

My Lords, I thank noble Lords for their contributions today and the noble Lord, Lord Thomas of Gresford, for his continued work championing the important issue of secondary legislation.

As we all know, this House plays a vital role in ensuring that all legislation brought forward by this Government is of the highest standard. I am grateful for the role played by committees of this House, including the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee, in ensuring that statutory instruments are subject to appropriate scrutiny. Our current procedures and processes for statutory instruments allow for both Houses to scrutinise and debate instruments.

Turning to the first group of amendments, which address the scrutiny of instruments in this place, I believe that these amendments are well intended, and I recognise that they represent a check on the power of this place and assert its right to scrutinise instruments laid before it. However, the Government’s view remains that we should continue to get this right in the first instance. That is why, as my noble friend Lady Anderson set out at Second Reading, we must focus our efforts on ensuring that statutory instruments are delivered to the highest quality in the first place.

That is not to say that the situation is perfect. This Government are aware that Parliament has not always been given the information it needs to fully scrutinise legislation, and the Secondary Legislation Scrutiny Committee has sometimes asked for further detail. This has on occasion led to some Explanatory Memoranda being replaced to include that information. But I remind the House, and, I hope, reassure the noble Lord, Lord Hunt of Wirral, and the noble and learned Lord, Lord Thomas of Cwmgiedd, that this Government have pledged, and intend, to do better. This does not mean, however, that we need to revise the procedures for the consideration of statutory instruments.

I think the Minister may be talking to the next group of amendments.

My apologies.

My Lords, I thank the noble Lord, Lord Thomas of Gresford, for his response to my amendments, and I am grateful to my noble friend Lord Hunt of Wirral and the noble and learned Lord, Lord Thomas of Cwmgiedd, for their contributions. Having been a member of the Secondary Legislation Scrutiny Committee when I first joined your Lordships’ House—I think it was during the first two or three years of the Brexit legislation—I have full sympathy with the points made on Explanatory Memoranda and lack of impact assessments, so I fully support all that my noble friend said on that.

The noble Lord, Lord Thomas of Gresford, made the point that he disagrees with my Amendments 1 and 2 about only the Minister having the power to lay the statutory instruments before the other place and the time limit. I understand his arguments. On Amendment 3, if we do not want to leave any doubt on “may” or “must”, it is probably simpler to leave it as “must” rather than “may”.

However, I entirely sympathise with the reasons of the noble Lord, Lord Thomas of Gresford, for drafting the Bill. Presently, your Lordships have a binary choice of whether to reject an SI or approve it. There is no procedural mechanism for the Government or Members in another place to consider your Lordships’ reasons for refusal. The Bill would allow any challenge from your Lordships’ House to be considered in another place, and I am pleased that there is within the Bill the clear power for the elected House to reject the proposed changes recommended by noble Lords. This, as the noble Lord argued at Second Reading, preserves the primacy of the elected House over the revising and scrutinising Chamber.

That said, as we will debate in the next group, it is not clear why the power to initiate the “think again” process is vested solely in your Lordships’ House under this Bill. I am pleased to have been able to put our concerns on the record, but, as I said at the beginning of our debate, we support the intentions of the noble Lord, Lord Thomas of Gresford, in bringing forward the Bill. We hope that our constructive amendments have provoked a useful debate on the appropriate powers that this House should have to amend secondary legislation. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendments 2 and 3 not moved.