My Lords, if I were to explain why I profoundly disagree with the noble and learned Lord, Lord Morris, I would lose the time I need to say what a wealth of experience came from the two maiden speeches that we heard today—experience of both the Treasury and the European Parliament. My noble friend Lady Bowles’s speech would repay careful reading in
Hansard by anybody who wants to take these issues any further.
“as a revising Chamber … we complement the work of the other place”.—[ Official Report , 17/12/15; col. 2189.]
I have to say that there is an awful lot of complementing to be done. There is complete reliance on the extensive work carried out in this House on statutory instruments. That should remind us of the danger of weakening the ability of this House to question and challenge the Executive and require them to think again. The very rare instance of an order being defeated by your Lordships underpins the ability of this House to question and challenge ill-thought-out delegated legislation, particularly when it deals with matters of principle or policy, which should be dealt with by primary, amendable legislation.
I should add that my experience in the Commons includes the one occasion when a statutory instrument was overturned by the House of Commons. It related to paraffin oil price control, and it was a mistake. We shouted “Aye” in support of the annulment Motion, the Prayer, and the Government Whip forgot to shout “No”, as a result of which one of his colleagues had to go along to the Palace and come back in his tailcoat with his white wand of office and bring back a Message that the Queen was happy to comply with our Prayer. As I said, that was not intended to happen.
Indeed, in the previous Parliament, the average amount of time spent in the House of Commons Chamber debating delegated legislation was just over five of minutes per day. You might say that it is all done in committees. One of the means by which late-night sittings were largely abandoned in the Commons in pursuit of family-friendly hours was by consigning almost all statutory instruments, which we used to have to debate between 10 pm and 1 am, to committees, but the situation in the committees is not much better than in the Chamber. The noble Baroness, Lady Smith, has referred to the press-ganged MPs who want to know whether it will be over in 10 minutes or whether they have to be there for 20. If there is a negative-procedure instrument, no meaningful vote can take place. Even if the committee votes that it has not considered the instrument, that vote is not reported to the House and no other procedure ensues or follows from it.
This is much more than a minor procedural issue. Governments of all kinds use delegated legislation to enact new policies and principles to change the impact of the criminal law, and amend the very legislation on which the instrument is based, as a number of noble Lords have mentioned. Committees of your Lordships’ House have produced egregious examples of this, such as the Childcare Bill 2015-16, which was described by the delegated legislation committee as little more than a mission statement. Yet even the mildest of the alternative proposals in the report of the noble Lord, Lord Strathclyde, rests on the utterly implausible hope that Governments will,
“take steps to ensure that Bills contain an appropriate level of detail and that too much is not left for implementation by statutory instrument”.
That will never happen. It would be like relying on an alcoholic promising to drink only moderately in future. It is just not realistic.
Why is that? There are several reasons. Often a Bill is introduced before enough work has been done on it. Departments like the freedom to rewrite and extend the legislation as they go along. Frequently the reason is that entirely new provisions are introduced into a Bill at a late stage without time to include key aspects in it. Opposition parties and campaign groups often feel obliged to accept this defective way of legislating, because it is a means of implementing a concession that they have sought and won from Ministers. How often have I heard it said from the Dispatch Box that the amendments are defective, but the Government will accept the principle and implement it by regulations? The phraseology gives it away. It is a matter of principle and importance, but it will be done by regulations and everyone says that that is fine. It is a victory, but one that undermines the effective scrutiny of legislation.
My conclusion is that we have to plan for the real world as we know it to be. The integrity of the legislative process and its ability to protect the rights of the citizen will always be threatened not just by the Executive’s fondness for power but also by the short cuts taken very often to promote quite good intentions. It will always be like that. We should therefore continue to develop the scrutiny role to which many of your Lordships devote a great deal of time and effort, and do nothing that could weaken the underlying authority for that role. There is lot wrong with House of Commons scrutiny of delegated legislation, and I believe that improvements could be secured and discussion between the Houses could well be profitable. However, the basis on which the House of Lords gives or very rarely withholds its consent for statutory instruments is basically sound. It is not broken and we should not risk weakening the work of this House by trying hastily to fix it.