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My Lords, ever since I joined my party’s Whips’ Office in 1977, the threat by all Governments of curbing the Lords’ power if the Opposition tried to vote down statutory instruments has been part of folklore. The threat was enough because all Governments eventually turn into the Opposition and then take a different view. It is ironic, as other people have said, that it should be a Conservative Government who are now proposing to take action, given that Conservative Oppositions have used the power far more than Labour have. As my old friend, the noble Lord, Lord Strathclyde, said in his Politeia lecture in 1999:
“Governments—all governments—are increasingly, and dangerously, insouciant about powers taken under secondary legislation … those powers are often so far-reaching that they must … undergo improved Parliamentary scrutiny. Parliament must, in turn, be ready to reject bad regulations. The new House of Lords will certainly assert that right”.
So is this Government in danger, perhaps, of becoming “insouciant” about powers taken under secondary legislation? If so, parliamentary scrutiny should be improved—as the noble Lord, Lord Strathclyde, promised —not curtailed.
I am in favour of improved scrutiny and have put forward my own proposal, also mentioned by my noble and learned friend Lord Wallace of Tankerness; briefly, it is that the substance of controversial SIs might be debated on a Motion which was amendable and on which Peers would be able to vote, while the instrument itself was parked and unaffected at that stage by votes. That two-stage procedure might enable the Government to give certain assurances, or even to withdraw and re-lay the instrument with some amendments of their own. In putting forward such a proposal, I am keen to show that I am not against a change in procedure for controversial SIs, but I am totally against legislating in this area for any diminution of this House’s power over secondary legislation. Without the ultimate threat of a veto, why would Governments with a majority in the House of Commons bother to be careful how they used their increased power? What nobody has referred to so far are the times when Governments have withdrawn an SI when the hostile Motion has been tabled. I know that from personal experience, but it will not show up in any records.
Option 3 of the review says that the Commons should have the last word. That is fine in theory but, as others have said, will that last word be a proper debate? I am full of admiration for Commons debates, but often one searches in vain for a Commons debate on an SI, only to find that there has not been one and that the SI was nodded through.
To take this whole matter forward, could we not ask our Procedure Committee to work up some of the various proposals, particularly those put in this debate, and even to conduct pilot schemes?
I end with a rhetorical question asked by the late great Lord Simon of Glaisdale, who was an expert in this field: “Do we want executive Government or parliamentary Government?”. That is still a question that we need to pose today.