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My Lords, I very much welcome this debate and look forward to the maiden speeches that we will enjoy later, particularly that of my noble friend Lord Darling, my former boss at the time when legislation on tax credits was introduced in this House.
Why have this review? Is it because of tax credits? As I think has been conceded, that was a delay Motion and, happily, the Commons did indeed reconsider, as this House wished. But even if it had been fatal, which it was not, it would not have been a constitutional threat, as is acknowledged, because between 2000 and 2010 the Conservative Opposition, under the noble Lord, Lord Strathclyde, ran 11 fatal Motions against the Government. Five of them were led by former Ministers, including a former Leader of the House, and two of them were successful. No one had a tantrum; no one called for a review; no one proposed to legislate on the subject; no one threatened to create 100 Peers. The only difference now, as my noble friend Lady Smith said, is that the then Opposition is now in government.
Was the tax credits issue, none the less, a constitutional outrage because it dealt with financial matters? No, that will not run either. Most of what our work involves concerns finance, whether it is defence, transport, childcare or social security. The Government know perfectly well that SIs are not financially privileged and do not need to be if they are used, as they should be, for fairly minor matters according to our conventions. So in my view, it was not the tax credits vote that strained our conventions but the Government in the first place using a statutory instrument for a highly controversial measure that would take millions of pounds away from millions of families, despite the Prime Minister’s election promises to the contrary.
With tax credits, an SI was used not to apply the original policy intent of the Bill, which is what SIs are for, but to subvert it. As has already been said, that task should have been done by primary legislation, if that was the Government’s intent. Having chosen an SI route, which cannot carry financial privilege and to do what SIs were never intended to do, the Government then claimed retrospectively that financial matters come under some sort of informal financial privilege, which, even though it had not been sought, they wanted us to respect as though it had been—when it had not. That is indeed a straining of conventions.
Why then do we have a review? Is it petulance from the noble Lord, Lord Strathclyde? Surely not. But the Government do seem to feel hard done by, victimised, with their 30.5% of the vote. As Ministers, we had
31% of the vote. We did not whinge, despite huge majorities down the other end; we worked for our votes the hard way. No, the issue that really matters is not the tax credit vote, as the noble Lords, Lord Strathclyde and Lord Wakeham, have acknowledged. The issue is the expanding role of SIs and their lack of scrutiny. Thanks to the noble Lord, Lord Strathclyde, this debate allows us to discuss this more fully, to which I now wish to return.
More and more, we have framework legislation—for social security, childcare, the Cities and Devolution Bill—where key decisions are to be carried by SIs beyond reach of amendment, sometimes drawn down months, even years, later. That role was never intended: nor, I believe, is it appropriate. Bills are now being future-proofed for future Secretaries of State with open-ended SIs that place future policy development beyond effective scrutiny.
The noble Lord, Lord Strathclyde, calls for greater clarity and certainty surrounding SIs. That is nice—for the Government. But what is really needed is effective scrutiny. I doubt that the Commons can do it, and I think that we can and that we should. Only we have the admirable delegated powers and scrutiny committees, and your Lordships have relevant expertise. We spend twice as much time as the Commons on debating SIs, even though we all know that we are wasting our time. As the Hansard Society says, we have the interest, appetite and time to do effective scrutiny.
So why do we not? We know why. The noble Lord, Lord Strathclyde, is right: we should, but do not usually, get draft SIs during the process of the Bill so that we can consider them. We cannot, as a result, amend SIs that are passed and brought to us subsequently. Motions to Regret deplore and are ignored; fatal debates debate and destroy. However, in certain circumstances, either may be appropriate.
However, in 65 years, the Lords has rejected only five of the 169,000 statutory instruments before it. In 35 years, the Commons has not rejected one. As the noble Lord, Lord Goodlad, said in his report on page 147, why bring SIs to Parliament at all if parliamentary scrutiny makes no difference? The noble Lord, Lord Wakeham, called for a suspensory veto to “force”—which he italicises—the Government and the House of Commons to take our concerns seriously. They were strong words from the noble Lord and he was absolutely right. Every review of Lords practices has called for a power of delay requiring the Government to think again while ensuring that the final say rests with the Commons.
Would option 3 in the report of the noble Lord, Lord Strathclyde, do that? It could, but only if it specified, as the noble and learned Lord, Lord Wallace, said, the period of delay—say 30 sitting days—before the SI returns to the Commons. Otherwise we could pass a delay Motion and the Government could take it back to the Commons, without reflection, with irritation and within 48 hours. The noble Lord, Lord Strathclyde, assures us that a Government would never behave like that. You think? He writes that the Commons may need to override the Lords rapidly in cases of urgency. If something is indeed urgent—such as national security —would we really delay? It seems deeply implausible and, in any case, the usual channels would sort it.
He then fears that the specified delay might run past the proposed implementation date. That is pretty feeble, too. With the Library’s help, I checked the 60 or so statutory instruments we have had so far in this Session. As we know, they have three stages: they are laid, debated and implemented. I agree that with perhaps four of those 61 there was less than six weeks between laying the SI and its implementation date—for example, the Northern Irish election order last July and the Asian banks immunity order last October—but most of the rest were laid three to six months before their implementation date. There is adequate time for a delay Motion if those SIs are debated in good time. What struck me was the length of time, often three months or more, between laying and debating them. However, that can be sorted by effective departmental and business management; it is not a pretext for denying us and the public effective scrutiny.
The only real argument against a specified delay period is the one the review will not admit to: that it would be highly inconvenient for the Government. Yes, it is meant to be. I would not expect a delay Motion to happen very often—perhaps half a dozen times a year—but the fact that it might—