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My Lords, in the course of my remarks I will say something about what was said in this House on
“to remove the House of Lords from statutory instrument procedure altogether”,
remains a powerful runner, despite the fact that, to quote the Hansard Society, it would risk,
“turning a deeply flawed process into a farce”.
The noble Baroness, Lady Smith of Basildon, and indeed my former pair, the noble Lord, Lord Cunningham of Felling, appear to believe that they are engaged entirely in a battle with the Executive so that Parliament can hold the Executive to account. The reality, as I will show, is that if we are engaged in a battle, it may be as much with Members of the House of Commons as it is with government Ministers.
Several noble Lords have said that this is not the way to effect constitutional change and that there would be no proper scrutiny of what is proposed. The noble Lord, Lord McNally, and the Liberal Democrats have argued that the House of Lords must have the right to say no and that without retaining that right, used sparingly, carefully and rarely, we become a mere debating society. The noble and learned Lord, Lord Wallace, supplemented his hostility to what is proposed with a procedure to allow SIs to be amended.
In the face of such strongly expressed objections to the conclusions of my noble friend Lord Strathclyde, a very powerful contrary view was expressed by the noble Lord, Lord Butler of Brockwell, as was referred to today by the noble and learned Lord, Lord Hope of Craighead. The noble Lord, Lord Butler, spoke in December of the dissatisfaction in all parts of the House with the binary choice that is open to us to either accept or reject statutory instruments. He pointed out that my noble friend Lord Strathclyde’s recommendations were very similar to those recommended by the royal commission chaired by my noble friend Lord Wakeham, who then intervened to confirm that the royal commission had made its recommendations because it wanted a better way for the House to discuss statutory legislation, and to suggest that there was a great deal of support in this House for the proposal.
He reinforced that judgment today, and I share that view. It was significant that, later, the noble Lord, Lord Richard, said:
“There is a good case for this House giving up its veto”.—[Hansard, 17/12/15; col. 2200.]
It is also significant that the noble Baroness, Lady Meacher, said that my noble friend Lord Strathclyde’s third proposal could be a useful way forward.
In arriving at a conclusion, we need to take account of what was said in the other place. I fear that it may not be as helpful a coming together as that advocated by the noble Lord, Lord Maclennan. Those who argued here that this was being pushed through without the opportunity for proper debate, and those who pointed to the shortcomings in Commons procedures for handling statutory instruments, appear to overlook the fact that it is to be dealt with by primary legislation. Mr Bernard Jenkin, who chairs the Public Administration and Constitutional Affairs Committee, said that his committee will wish to look at this, just as the Procedure Committee will. He posed a number of key questions and finished by saying:
I am sure that both Houses will do the same. It may be that that is one of the opportunities that will arise for dealing with the important constitutional point raised by the noble Lord, Lord Kakkar.
We would be incredibly foolish if, in reaching our own conclusion, we ignored the opinions expressed in the other place about this House and its role. Even if we unwisely discount the unanimous opinion of the four Scottish nationalist Members who spoke on
With views of that kind being expressed so forcefully in the Commons and with a great many in this House wanting the sensible compromise suggested by my noble friend Lord Strathclyde, to delay everything for a Joint Committee would be a mistake. There is a need for a Joint Committee for the powerful reasons that have been put to us today. As a former member of the Constitution Committee, which has frequently criticised the manner in which SIs are used and the far too frequent use of Henry VIII clauses—I enjoyed the contribution of the noble and learned Lord, Lord Judge, on that subject—I would also like to see a major independent review of the whole legislative process, as advocated by the Hansard Society. But that would take years, and its implementation even longer.
If I am even half-right about the strength of feeling in the other place, there has to be a compromise now, even if it is only an interim step. We need to get on with things, just as we need urgently to get on with our own reform of the membership and conduct of the House of Lords.