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Strathclyde Review — Motion to Take Note

Part of the debate – in the House of Lords at 4:53 pm on 13th January 2016.

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Photo of Lord Trefgarne Lord Trefgarne Chair, Secondary Legislation Scrutiny Committee 4:53 pm, 13th January 2016

My Lords, in rising to intervene briefly in this debate, I start by explaining that I am chairman of your Lordships’ Secondary Legislation Scrutiny Committee, which has the task of looking at virtually all the secondary legislation coming before Parliament and reporting, as necessary, to your Lordships. We see about 1,200 or so such items each year, but, happily, only need to trouble your Lordships with a very much smaller number. Your Lordships’ Select Committee intends to study my noble friend’s review, taking into account your Lordships’ views expressed today, and will no doubt submit a report in due course. I must therefore emphasise that everything I say today reflects my personal view only.

I turn now to the events of 26 October and subsequently. While I accept that in theory—and in theory only—your Lordships’ decision on that day was not formally fatal, fatality was, indeed, the practical effect and Ministers and the other place were entitled to take that view. Furthermore, there was never any doubt that that would be their reaction.

There are two reasons why I think that your Lordships were mistaken on that day. First, there is a long-standing convention that secondary legislation is rejected only in the most exceptional circumstances—a mere political disagreement is not sufficient. When your Lordships came to express your opinion in the Division Lobby, not a single Conservative supported the amendments. The matter was pure politics and nothing else. The second argument in relation to the tax credits order was the plain and simple fact that it dealt with essentially financial matters, for which your Lordships have long accepted House of Commons primacy. For these reasons, I consider that your Lordships took a mistaken decision on 26 October and I am, therefore, not surprised that my right honourable friend the Prime Minister asked my noble friend Lord Strathclyde to conduct his review, for which we are grateful to him.

I turn now to my noble friend’s conclusions set out in Cm 9177, in which he offers three alternatives. I deal first with his first possible change, namely primary legislation to remove your Lordships from all future consideration of secondary legislation, leaving it to be entirely a matter for the other place. While I can see that that would be a possible reaction, it would be, I believe, a mistake. The fact is that your Lordships have always, through relevant Select Committees, offered much more detailed and constructive consideration of secondary legislation than has ever been possible in the other place. It would be a great pity if all that was brought to an end. It is, I suggest, highly unlikely that the other place would find it possible to create a mechanism for such detailed scrutiny.

My noble friend’s second alternative is for your Lordships simply to rewrite the existing Standing Orders relating to secondary legislation and hope that they would stand the test of time. The snag with that arrangement, as my noble friend points out, is that Standing Orders can of course be changed by a simple resolution, and I can well see that the other place would regard this as an inadequate response.

We are, therefore, left with my noble friend’s third alternative, namely setting out a new procedure in statute providing for your Lordships to invite those in the other place to think again when a disagreement arises and allowing them to insist, if they so decide, on primacy. As my noble friend suggests, this would be a not dissimilar process to the one set out in the Parliament Acts relating to primary legislation. It is the way forward that I personally support.

I end by saying that I recognise that there is room for more than one respectable point of view on this matter. My view is the one that I have described, which I hope will in due course find favour. I look forward to the two maiden speeches that we shall hear in a little while.