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My Lords, I have not generally participated in debates of this kind, leaving them to noble Lords with greater constitutional and parliamentary expertise. However, this month it will be 20 years since I was introduced. As a member of the Secondary Legislation Scrutiny Committee chaired by my noble friend Lord Trefgarne—of course, I speak personally— I feel able, on this occasion, to offer an opinion.
I start from the position, as I think most of us do, of believing in the primacy of the House of Commons and that your Lordships’ House is complementary to the House of Commons. Over many decades, an ethos was established in this House, largely by the hereditary Peers, which was followed by the life Peers and ensured that the Government should ultimately get their business through and that the conventions should be observed, but that, for good or ill, under the present system this House had certain rights, which were rights of Parliament as a whole, not just of this House. That way of working encourages compromise, courtesy and a less partisan approach than exists elsewhere in Parliament.
That spirit survived the exclusion of the majority of hereditary Peers, but I perceive a change which began under the coalition and continues in this Parliament. It is on the part of the Government. I do not know whether the change was brought about by the dynamics of coalition or the political arithmetic that now exists. The change on the part of the Government that I perceive, rightly or wrongly, may be subtle, but it involves not just the acceptance of the traditional role of the Government getting their business, subject to the proper exercise of our rights, but a change which is turning towards seeing this House as an instrument of securing government policy, rather than as an instrument of the rights of Parliament. The rejection of the tax credit instrument, which was seen by the Government as a breach of convention—my noble friend has confused me: was it or was it not?—has led to my noble friend Lord Strathclyde’s report. To rush into legislation to change the current position would be a mistake. Hard cases make bad law.
I respectfully suggest that this measure was badly handled at both ends of the Palace. Whatever the original legislation said about changes to be made by statutory instrument, it could have been foreseen that, given the numbers on the Floor of this House and the concern both inside and outside Parliament, trouble was likely. Despite what has been said by my noble friend Lord Skelmersdale, the Government could have found a different way of dealing with it. Equally, this House—and we could have endless discussions about whether or not the amendment was fatal or in breach of convention—was not well advised to take its powers to the limit, and perhaps to breaking point.
Although we are grateful to my noble friend Lord Strathclyde for his report, I wish that this had been dealt with through parliamentary channels, not by a hasty decision of the Executive to seek a solution. We are where we are, however, and my noble friend’s report recommends option 3, a power to delay, which, if introduced properly, could improve the scrutiny of statutory instruments by Parliament as a whole. My membership of the Merits of Statutory Instruments Committee has opened my eyes to the scale, complexity and range of secondary legislation. That scrutiny is certainly needed, and I support the suggestion made in option 3.
I have not been a Member of the other place, but the scrutiny there of statutory instruments appears not to be intense. In the case of tax credits, without the benefit of the impact assessment requested by my noble friend Lord Trefgarne on behalf of the committee, it was voted on. The article referred to by the noble and learned Lord, Lord Wallace of Tankerness, by Mr Matthew Parris, a former Conservative Member of Parliament, described statutory instruments as,
“the fat, hidden underbelly of our lawmaking. Peers are good at small print, but the Commons should worry about the mountains of SIs it waves through”.
If the power to delay were to be the abandonment of our veto, then before that is agreed some conditions should be applied and some questions answered. Is the veto removal limited merely to financial statutory instruments? If so, how will financial instruments be defined? Is the right of veto to be retained over non-financial instruments? How many of them are without financial impact? I believe that a power of delay has to be for a set period to ensure that the House of Commons has and allots time to debate and consider our reasons for rejection, and to return the instrument with amendments or with reasons for maintaining its position. This is power for Parliament, not for your Lordships’ House. My noble friend Lord Strathclyde argues against a set period for delay on the grounds that there may be urgency, but that should be an exception, not the rule.
I am not a noble and learned Lord. Reference has already been made to the Fixed-term Parliaments Act by the noble Lord, Lord Kakkar, which repealed a provision in the Parliament Act and replaced it with a power for a statutory instrument put forward by the Prime Minister to extend Parliament for a maximum of two months. As he said, that is a principle that needs looking at. Our House is also bound into the process. The Statutory Instruments Act itself, as amended, deals with what must occur if an instrument is to come into force before being printed and laid before Parliament, and involves notification being sent not just to Mr Speaker but to the Lord Speaker together with an explanation. These are all matters that need consideration and discussion.
I am glad that my noble friend chose not to respond to representations about composition, nor to comment on ideas to reduce the overall numbers to reflect the votes cast in a general election, which is a recipe for a change that would lead to a further weakening of the independence of this House and its Members and create a Chamber much more in tune with whatever party formed the Government and, hence, a stronger Executive. The present situation regarding numbers in this House is not the fault of the House or any of our colleagues in any part of the House, and needs not legislation but the spirit on the part of all the parties here that led to the Salisbury, Addison, Carrington, Shackleton and, indeed, the then Viscount Cranborne and the noble and learned Lord, Lord Irvine, agreements at various times in this House.