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Lord Wakeham: My Lords, I did not want to intervene to stop the noble Lord, but I should have thought that he has known me for long enough to know that he has to try a good deal harder before he upsets me!
If, as I see from the nodding and shaking of heads around the Chamber, noble Lords do not want an elected second Chamber, it is much better that we have a nominated one--nominated in whatever way noble Lords would like. That would be better than a hybrid House as recommended by the noble Lord, Lord Wakeham.
The problem of the powers, if one had an elected or even a new second Chamber, is important. Everyone agrees that the other place must be paramount. I agree with that view. Recently, I referred to something that the Leader of the Opposition, the noble Lord, Lord Strathclyde, was quoted as having said--I am not sure whether it was true: he was going to be bolshy and ignore the Salisbury Convention. When I said that to him, he both nodded and shook his head, so I was not clear what he was saying. No doubt his Deputy Leader will tell us.
The Salisbury Convention is just that--a convention. If we have a new Chamber or this Chamber is strengthened in some way, we should entrench the Salisbury Convention in legislation and stop talking about conventions. That could be done to limit the powers of this Chamber, so allowing the other place to be paramount. At the moment, we have this so-called interim House. I agree with those who have said that we should be able to make the government of the day think again in relation to secondary legislation.
I entirely agree with everything that has been said on that subject, and we do not need to wait to do it. It can be done now. My noble friend Lord Peston, in his customary wise way, said that it should be done only once: we should not be playing ping-pong with the other place and with the Government. In that way we diminish the responsibility, the powers and the respect in which the House is held, and so I hope that if we do take these powers it would be to use them just once.
As I have said, one does not need to worry too much about the Wakeham commission report, because its recommendations will not be implemented. The noble Lord knows that: he is smiling now, but he knows very well they will not. Can you imagine that if this Government were re-elected and at the start of a new Parliament the then Prime Minister--the present one, I assume--would have as a high priority instituting a new major piece of constitutional legislation? One has to be joking. It will not happen. This interim House is going to last for rather a long period of time, in my view.
The Wakeham commission report, from which this Motion has taken some recommendations, got it right in this respect. That is not too surprising. Out of 132 recommendations it would be astonishing if it had not got one or two right--and it did--but we are told that we should not cherrypick from the report. Why should we not? In any case we are not even talking of the Wakeham commission recommendations: these are the ones that my noble friend Lord Peston and I set out to them in our evidence. So this really could be said to be our evidence. The plain fact is that there is absolutely no reason whatsoever why one should not cherrypick at least one or two of the good points in the report.
Let me revert to the Motion. My noble friend Lord Peston agreed with what we submitted in evidence at the time: that we should seek to allow secondary legislation both to be voted on in your Lordships' House and to be amended. He had doubts about the amending part. He has not discussed this with me--to my regret, and I will talk to him about that later. The reason that he gave is quite a good one, actually: despite all our brilliant legal minds and great parliamentary minds, we are not well equipped to draft amending legislation. We should therefore simply throw it out and let the government of the day do the necessary work. I agree with him on that. There is no harm in doing it that way, but it is important that the interim House should have those powers because, as I say, we are going to last a long time and so there is no need to wait.
The noble Lord, Lord Dean of Harptree, asked the Minister to give it a fair wind. I hope he does so but, frankly, it does not matter. It is not a matter for the Government. We should remind ourselves that we in your Lordships' House are in command of our own rules. It would be nice if he gave it a fair wind but, frankly, if he, the usual channels and the authorities of the House decide that we should not have it, that has nothing to do with it. We are in charge--we, the Members of your Lordships' House--and if they do not like it, that is just too bad. So I say to my noble and learned friend Lord Falconer, of whom I am very fond,
Lord Norton of Louth: My Lords, I, too, welcome this debate and join with others on congratulating my noble friend Lord Dean of Harptree on initiating it. Indeed I commend my noble friend on his persistence in returning to this extremely important matter. I think I now know how one of my students feels at the end of a seminar, saying that, "Everything I wanted to say has already been said". Where I differ from the student is that I intend to carry on!
Before I get to the meat of what I should like to say, I just want to respond to the noble Lord, Lord Barnett, who provokes me with his opening comments about democracy. I disagree with him. He is taking one particular definition of democracy. He is defining it solely in terms of process: that is, election. If you define democracy as the translation of the wishes of the electors into legislative output, then you come up with a very different form of parliament. I think that is a preferable definition and it also entails looking at Parliament in a holistic manner, and not simply concentrating on this Chamber.
I now turn to the heart of the debate itself. This is, as the noble Lord, Lord Dahrendorf, has said, a very important debate because in looking at delegated legislation we are addressing a problem of Parliament, not a problem of the House of Lords. It is quite possible to move forward on this issue without impinging on the wider debate about the shape of the upper House.
The upper House, whatever form it takes, should join with the other place in subjecting delegated legislation to effective scrutiny. That there is a need for the effective scrutiny of delegated legislation cannot be doubted. The phenomenal growth in the volume of statutory instruments has already been mentioned and has been recorded by a range of authoritative bodies. It was noted by the Hansard Society Commission on the Legislative Process in 1992, by the Procedure Committee of the House of Commons in 1996 and now by the Royal Commission. All three bodies agree that the means of parliamentary scrutiny are inadequate for the task. Each makes recommendations for strengthening scrutiny.
The report of the Commons Procedure Committee on Delegated Legislation in 1996 was a powerful document in favour of reform. I should perhaps declare an interest in that I was one of the five witnesses to give oral evidence to the committee. The committee offered 18 recommendations, the most significant of which are mentioned in the report of the Wakeham commission and have been touched upon already by several speakers.
It recommended a new category of "super affirmative" instruments. It favoured the creation of a new sifting committee to decide which negative instruments merited debate. The sifting committee was to look at statutory instruments in the context of political importance, thus distinguishing it from the work of the Joint Committee on Statutory Instruments, which of course is concerned with the technical merits. It also recommended a point that was touched upon by my noble friend Lord Alexander of Weedon that the "praying time" in respect of negative resolution instruments should be extended from 40 to 60 days, and that debates in the Standing Committee on Statutory Instruments take place on substantive Motions.
The committee's report makes an excellent case for these recommendations. The Royal Commission in effect makes similar recommendations for your Lordships' House. Indeed, as the commission records on page 72,
The Royal Commission offers a well argued case for reform and is highly persuasive. I believe that the case for action is overwhelming. However, like several other noble Lords, I would qualify my endorsement of that in two respects. The first is in respect of its conclusion that there is no case for making it possible to amend statutory instruments once they have been formally laid before Parliament. Like the noble Lord, Lord Peston, I recognise the difficulties of permitting amendment by Parliament. In large measure, as the noble and learned Lord, Lord Simon of Glaisdale, mentioned, it undermines the case for having delegated legislation and this point was well recognised by the Commons Procedure Committee in its report.
However, there is a case for Parliament being able to persuade government to withdraw and reintroduce a statutory instrument that is clearly flawed. The Procedure Committee effectively squared the circle by recommending that it be possible for conditional amendments to be moved in a Standing Committee on Statutory Instruments. It would then be open to the Government to withdraw and re-lay the instrument,
I differ also from the Royal Commission in its recommendation that the powers of this House be limited in respect of delegated legislation. The limited powers it recommends would, I think, be too much of an encouragement for the Government simply to employ their majority in the House of Commons to override any vote in your Lordships' House to reject a draft instrument or to annul an instrument. I believe that the existing powers are adequate. Delegated legislation is not analogous to primary legislation, simply by definition. Not only can the Government re-lay an instrument; they can, if your Lordships' House continues to reject it, embody it in primary legislation and thus, ultimately, ensure its passage under the provisions of the Parliament Act. That fact is recognised by the Royal Commission, but it makes the point in suggesting that the existing absolute veto power is more apparent than real. However, in that respect, I disagree with the Royal Commission. Introducing legislation to give effect to a rejected instrument is time consuming, eats into the Government's legislative programme and, of course, if the House rejects the legislation, entails a delay of one year. That prospect gives the House much more leverage than the capacity to delay an instrument for three months.
Furthermore, I believe that this House is perfectly entitled to use its power to annul an instrument. The reasons for that are twofold; one is present and one is prospective. First, delegated legislation is designed to provide a means to an end. The ends are stipulated, or should be stipulated, in the primary legislation. We are not therefore dealing with matters that are likely to be embodied in a manifesto or the Government's programme for the Session.
Secondly--this is the prospective reason--the proposed method of scrutiny that I have outlined gives greater legitimacy to the use of the power. If a sifting committee has recommended that an instrument be annulled or has passed a conditional amendment that the Government have not heeded, then the House will expect a full justification from the Government. If that is not forthcoming, I think that the House would have perfectly valid grounds for rejecting the instrument. Of course, if the system is working well, the House should not need to use the power, but I think that the power needs to be there.
Lord Goodhart: My Lords, I am most grateful to the noble Lord, Lord Dean of Harptree, for introducing this debate on an important subject which the events of 22nd February have made even more important than they were before. When, as a novice, I joined the Delegated Powers and Deregulation Committee, I learnt much from the experience and wisdom of the noble Lord.
However, I agree with the noble Lord, Lord Peston, that, useful though this debate has been, it is no substitute for a full debate on the role of the interim House. That, I believe, is a debate that we should have and I am sorry that the Leader of the House is not in her place today to listen to our debate. I hope that she will take the opportunity of reading the report in Hansard very carefully.
The power of your Lordships' House to reject secondary legislation emerged like a tiger from its lair on 18th June 1968 when this House narrowly rejected the Southern Rhodesia (United Nations Sanctions) Order. That vote was seen to create a constitutional crisis. It brought to an end the cross-party discussions on the reform of your Lordships' House that were proceeding at the time. The government announced their intention to introduce legislation to reduce the powers of your Lordships' House--an intention which somehow they never got around to implementing. The order, in a slightly varied form, was relaid and approved by your Lordships' House a month later, on 18th July. The tiger returned to its lair, where it snarled from time to time.
The procedural device of a non-fatal amendment was invented. The extremely useful Library Notes on this subject tell us that a non-fatal amendment was passed eight times between 1977 and 1998. During that period there were also some direct challenges to orders, but none of them was successful.
On 20th October 1994, the noble and learned Lord, Lord Simon of Glaisdale--whom I am very glad to see has once again participated in the debate today--persuaded your Lordships' House that there was no convention which prevented it from exercising a power to reject secondary legislation. That, of course, has always been the view of these Benches.
On 22nd February his year, the tiger emerged from its lair for a second time and savaged the London election rules because they did not provide for a freepost. This time there was no constitutional crisis. The Government negotiated on the subject and returned with an amendment to the Representation of the People Bill to allow a freepost for the mayoral election. On this occasion, your Lordships' House was acting not to protect, as in 1968, a white minority
I believe that the right to reject secondary legislation is a very powerful weapon in the hands of your Lordships' House. It is so powerful that it must be exercised with very great care and restraint. I shall not try to suggest any specific rules for this; it would take far too long in our debate this afternoon and others could do it much better than I. However, the power should not be used, in particular, to block the implementation of an Act if the principles being implemented were fully debated in Parliament during the passage of that Act.
For example, under the Access to Justice Act 1999, there were many aspects of the funding code for the Community Legal Service to which we on these Benches strongly objected. But those issues had been fully debated during the passage of the Bill and it would not have been right to challenge the order for approval of the funding code. When the order came forward, I appeared in this House merely to criticise it, but not to make any attempt to revoke it.
However, if the circumstances justify the exercise of a power to reject secondary legislation, then I believe that it is the right and duty of your Lordships' House to exercise that power. The attempt to lay down rules for the mayoral election without a freepost was plainly such a case.
The trouble with the proposals in Chapter 7 of the report of the Royal Commission is that it entirely destroys this vital power of your Lordships' House. Under Recommendations 41 and 42 of the report, any order rejected by your Lordships' House can nevertheless take effect if confirmed in the other place within three months. I emphasise the word "within", rather than at the end of three months. The effect of this would have been that when your Lordships' House threw out the London election rules, those rules would have been voted on again within a matter of a few days in another place. They would have taken effect without any amendment and there would have been no freepost.
I have to say that when I first read Chapter 7, I assumed that these proposals were intended to work the other way around. I thought that they meant that the other place could force an order through after a delay of three months, and I believe that, judging from his speech, that is what the noble and learned Lord, Lord Simon of Glaisdale, also thought. I then re-read the chapter and discovered that I had misunderstood what was said in the report; namely, that three months was the end of the time within which the other place could confirm the original order, not the start of that time. Let me refer to Recommendation 41, which states:
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