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My Lords, I follow the noble Lord, Lord Crickhowell, in two senses: first, we must listen to what happens in another place; and, secondly, we must not resile from our duty to be a revising Chamber.
In passing, I endorse the view of the noble and learned Lord, Lord Hope of Craighead, that option 1 will not fly. I also endorse the view of the noble Lord, Lord Norton of Louth, that conventions are not really substantial. I remember sitting on the Opposition Front Bench, as the noble Lord, Lord Strathclyde, will remember, for 10 years in opposition. Every time an SI came up, we consulted: “Shall we try to jump them on this or not?”. The argument generally was no, we should not, because they will do it to us if we come into government. So it is realpolitik; there was no convention in it.
I was most impressed by the noble Lord, Lord Kakkar, and the noble and learned Lord, Lord Judge, because I think that there is a distinction in statutory instruments between those which are the normal run of business and those which seek to amend primary legislation. I shall follow up that argument. Since 2010, 34 Acts have been passed by Parliament with Henry VIII powers. Before us at present there are five Bills with Henry VIII powers. In case your Lordships are not familiar with Henry VIII powers, I should like to read from Clause 68 of the Scotland Bill, which states:
“The Secretary of State may by regulations make … such consequential provision in connection with any provision of Part 1, 3, 4, 5 or 6, or … such transitional or saving provision in connection with the coming into force of any provision of Part 1, 3, 4, 5 or 6 … Regulations under this section may amend, repeal, revoke or otherwise modify any of the following (whenever passed or made)”— and so it goes on. In other words, if your Lordships think that you have passed a Bill, you have not—because the Secretary of State can amend it by statutory instrument.
If we are considering the passage of SIs in this House, we ought to distinguish between those SIs, as the noble Lord, Lord Kakkar, pointed out, which try to amend primary legislation and those which do not. If they try to amend primary legislation, I would argue that we in this House should adopt procedures, such as Third Reading procedures, where we could discuss the primary legislation which is to be amended—and, indeed, amend it and send it back to the Commons for consideration. If we resile from that possibility, I am afraid that we are giving up our primary function, which is to revise primary legislation when it comes before us and send it back to the Commons if we do not agree. I would like the Government to consider that when they follow up the report of the noble Lord, Lord Strathclyde.
My second point is whether option 3—which is the only one seriously on the table—should be introduced through primary legislation or Standing Orders. The noble Baroness, Lady Fookes, made a very powerful case when she said that we have got to sort out what would be the result of option 3. I would support primary legislation for option 3 if there is a general agreement between us and the House of Commons about what should be the general thesis of how both Houses approach statutory instruments. I cannot understand any idea that this House’s approach to statutory instruments should be decided unilaterally by the House of Commons. In other words, if there is to be a unilateral decision I would prefer it to be by Standing Orders.
The noble Lord, Lord Strathclyde, quite rightly points out that Standing Orders can be suspended. That is true, but the Companion states quite clearly that for Standing Orders to be suspended, there has to be agreement within the House; in other words, between the usual channels. So any idea that Standing Orders can be suspended in order to try to pass a contentious statutory instrument does not really fly.
With those two caveats, I basically welcome what the noble Lord, Lord Strathclyde, is putting forward in option 3. It is about time we had an idea of how both Houses should deal with statutory instruments generally. We lack a definition of how the House of Commons can establish its financial privilege and how we should obey it in this House, with the primacy of the House of Commons. So I give the proposal half a fair wind—but I hope that the noble Lord, with all his experience, will recognise that half a fair wind coming from me is not bad.