“The Government appear to consider that any defeat of an Statutory Instrument by the Lords is a breach of convention. We disagree.” Lord Norton of Louth (Conservative)
“The conduct of Parliament is a matter for Parliament, not the Executive. The Executive is accountable to Parliament, not the other way round.” Lord Forsyth of Drumlean (Conservative)
“The assertion is that this House had acted in defiance of the Government’s “electoral mandate”. But the Conservative Party never told voters that it intended to make massive cuts to in-work benefits, and it won a House of Commons majority of only 12 seats on the votes of just 24% of the total electorate, so the claim that the Lords defied an electoral mandate is tosh.” Lord Howarth of Newport (Labour). Source: Hansard.
A Bicameral Parliament is one in which two assemblies share legislative power. The main purpose of the House of Lords is to act as a deliberative assembly, providing expert scrutiny to ensure democratic checks on the power of the Lower House, and where necessary, to provide a counterbalance for excessively partisan legislation that makes no concession to the accommodation and representation of minority views. The House of Lords provides an essential additional layer of democratic process which helps to prevent the so-called “tyranny of the majority” and divisive, potentially damaging partisan changes to public life.
There is always a need to ensure additional checks and balances against incumbent governments and for extending opportunities to review and improve the quality of legislation. There is always a need to broaden the political participation of particular groups in society and to explore ways by which under-represented groups may be identified and included in political processes.
A review by Lord Strathclyde, commissioned by a rancorous and retaliatory David Cameron following the delay and subsequently effective defeat of government tax credit legislation in the House of Lords, recommends curtailing the powers of Upper House.
Strathclyde proposes that the House of Commons is given the final say over secondary legislation (in particular, Statutory Instruments), which is frequently being used for political manoeuvring to edit the details of Acts, and ensure rules, regulations and even changes to legal definitions are made by ministerial order, rather than by the rather more open and democratic process of primary legislation: it’s being used as a way of bypassing Parliamentary scrutiny.
In fairness, on page 6 of the report, Lord Strathclyde says:
“I believe it would be appropriate for the Government to take steps to ensure that Bills contain an appropriate level of detail and that too much is not left for implementation by statutory instrument.”
The problem is that Statutory Instruments (SI) are being over-used and are under-scrutinised in the Commons. SIs have become a major form of law-making activity in the UK. In 2015, the UK Parliament passed 34 Acts, whilst 1,999 Statutory Instruments were made. (In fact, 2015 has been a relatively light year for SIs: in 2013 and 2014, 3,292 and 3,486 SIs were made.)
The Government ensure they have a majority on any SI committee and MPs are chosen by Whips. The Hansard Society estimate that SIs currently account for as much as 80 per cent of the Government legislation that impacts citizens. However, they are given substantially less Parliamentary time than Bills, enabling Government to push through their legislative programme with very little scrutiny, exacerbating a lack of democratic transparency and accountability of the Executive (the Government).
The report details 3 possible options:
- option 1 would remove the House of Lords from the Statutory Instrument procedure altogether – to take Statutory Instruments through the House of Commons only
- option 2 would seek to retain the present role of the House of Lords but clarify the restrictions on how its powers should be exercised, by codifying them passing a resolution
- option 3 is a compromise option would create a new procedure in primary legislation. The new procedure would allow the House of Lords to ask the House of Commons to think again when a disagreement exists but gives the final say to the elected House of Commons
Strathclyde has recommended option 3. However that would have a profound impact on our constitutional democracy.
The Hansard Society said that:
“Most criticism of the system is concerned with the negative resolution procedure where the initiative lies with the Opposition to table appropriate annulment motions in the form of Early Day Motions (known as “prayers”). Given that the Government controls almost all the available parliamentary time in the Commons, unless the Opposition can persuade the Government to provide time, either on the floor of the House or in Standing Committee, the SI will not be debated.
The time limit (of an hour and an half) imposed on debates should be removed.”
The Society also recommend far more robust pre-legislative scrutiny mechanisms.
Lord Craig of Radley (Cross-Bencher) points out that:
“Since 2010, 34 Acts have been passed by Parliament with Henry VIII powers. Before us at present there are five Bills with Henry VIII powers. In case your Lordships are not familiar with Henry VIII powers, I should like to read from Clause 68 of the Scotland Bill, which states: “The Secretary of State may by regulations make … such consequential provision in connection with any provision of Part 1, 3, 4, 5 or 6, or … such transitional or saving provision in connection with the coming into force of any provision of Part 1, 3, 4, 5 or 6 … Regulations under this section may amend, repeal, revoke or otherwise modify any of the following (whenever passed or made)” — and so it goes on. In other words, if your Lordships think that you have passed a Bill, you have not — because the Secretary of State can amend it by statutory instrument.”
Baroness Smith of Basildon (Labour) said she would like to thank Lord Strathclyde for his report, and:
“For the extraordinary speed with which it has been produced and the vigour with which he has sought to defend the Government’s exceptionally weak rationale for undertaking it.”
She also said:
“Lord Strathclyde asks for responsible Opposition. We provide that but seek responsible Government.”
Baroness Andrews (Labour) said:
“We have had to refer back to this House secondary legislation which contains substantial policy changes with substantial impacts — for example, the draft hunting regulations, immigration changes, and universal credit. In this Session alone, 32 SIs have had to be corrected by government after serious flaws were identified and 16 have had to be withdrawn completely.
If we add to that ministerial failure to provide impact statements, or Explanatory Memoranda which do the opposite of what they are supposed to do, a picture emerges of a Government who not only deliberately exploit secondary legislation and reduce parliamentary scrutiny in the process but are resentful of proper scrutiny. If we were to lose our exceptional power to reject SIs, Parliament would lose a legitimate brake on government excess. However, it would also reduce the credibility of the scrutiny process as a whole and open the gate to greater abuse. What is needed, which the noble Baroness, Lady Hayman, anticipated, is a wholesale review of secondary legislation to remind Ministers of their public duty to be open and transparent about policy and legislation, to be accountable, and to respect—in fact, invite—the role of scrutiny.
We should not see this as a stand-alone report; rather, it should be seen alongside other legislation and proposals—for example, the lobbying Bill in the previous Parliament that restricted the ability of charities and other groups to campaign for their causes; new limits on freedom of information; and the Trade Union Bill, debated this week, which will strip the Labour Party of its funding, quite contrary to the balanced proposals from the Committee on Standards in Public Life. We have seen reports of Ministers being told to make increased use of statutory instruments to drive through legislation without proper scrutiny; and now we have the proposal to remove this House’s power to veto the same secondary legislation that the Government favour. It is hard not to see this as an authoritarian Executive waging war on the institutions that hold them to account. The Government are seeking to stifle debate, shut down opposition and block proper scrutiny. They are a Government who fear opposition and loathe challenge.”
Lord McNally (Liberal Democrat) said:
“I may want to see this House reformed, but I have no wish to see it become Mr Cameron’s poodle, and a neutered poodle at that.”
I suspect this is a Government that would prefer a world of neutered poodles.
A full transcript of this important debate can be found here
You can also watch the excellent contributions here.