I have some considerable sympathy with that but want to restrict my remarks to what I consider to be the role of the House of Lords.
The issue of this debate has not arisen particularly because of recent events, but has been a long time coming. As the noble and learned Lord, Lord Wallace, mentioned, there was a very interesting debate in 1994, when the wonderful former law officer Lord Simon of Glaisdale set out with clarity that the House of Lords had absolute, unfettered power to reject secondary legislation. He was followed by my successor as Leader of the House, my noble friend Lord Salisbury, who accepted Lord Simon’s proposition but then set out clearly the way that conventions had influenced how the House operated. It is a debate well worth rereading, but in the end it demonstrated to me that the conventions were not powerful or clear enough to be an acceptable way to run matters in the House as it is now constituted. It may well have been when the House was mainly hereditary but not now in a House with so much greater political wisdom and experience.
That was one reason why, in my royal commission report some 15 years ago—when I was an opposition Member but was supported by all parties at the time—I recommended that we changed the way that secondary legislation was dealt with in this House and made a proposal not very dissimilar from option 3 proposed by my noble friend Lord Strathclyde.
Secondary legislation is here to stay. It is important to remember the advantages which government, Parliament and society derive from the existence of delegated powers. Ministers and other statutory authorities are able to legislate by secondary legislation on detailed points within the limits of the delegated power in the original Act. In consequence, Bills can be restricted to their essentials, Parliament can concentrate on the key principles and Acts will be better drafted and understood. There is less need for subsequent corrective amendments to primary legislation. Secondary legislation can be amended or replaced much more easily than primary legislation.
In my royal commission report, we said that the number of statutory instruments had increased substantially over the last 100 years, but my noble friend Lord Strathclyde reports that the number has stabilised since then. Nevertheless, it is important that they are dealt with effectively. The proposal before us is to give the House of Lords not less but more influence over secondary legislation. In my view, it is ironical that the present powers of the House of Lords are more absolute over secondary legislation than they are over primary legislation, but we have got by because of the conventions, which, as I indicated, some of us felt were at breaking point even 15 years ago.
Over the years, all Governments have got secondary legislation passed in the House of Lords, even when the House of Lords would have preferred to ask the House of Commons to think again. My noble friend’s proposal would change all that and allow the House to ask the Commons and the Government to think again, and thus give the House a revising function over secondary legislation that it at present lacks by contrast with its role in relation to primary legislation. The proposal before us is to give the House of Lords more power and influence over secondary legislation, which in the right circumstances they should use.
These proposals are entirely consistent with our constitutional practice. The Lords’ role is to review and, if not satisfied, to ask the House of Commons to think again. The Commons’ role is to think again but in the end to decide. Recent events indicate that it is a course that can be effective. However, our democratic system requires the House of Commons to prevail.