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Lord Simon of Glaisdale: My Lords, every?

Lord Falconer of Thoroton: My Lords, yes: every.

Lord Mackay of Ardbrecknish: My Lords, I am following the argument of the noble and learned Lord, but does he agree that his argument would be on firmer ground if, during the passage of the primary legislation, the secondary legislation were available, thus enabling both Houses to see what the Government intended?

Lord Falconer of Thoroton: My Lords, how can it be available in every case? What happens when the minimum wage is changed? That is the sort of situation we are talking about.

Lord Mackay of Ardbrecknish: My Lords, we could be talking about the first time, when we could at least see it before we pass the primary legislation.

Lord Falconer of Thoroton: My Lords, sometimes it is available. The noble Lord gave examples. Sometimes, as I indicated--and frequently--it is a power given to a government on an ongoing basis which it is intended should be changed and, therefore, cannot always be available at first instance.

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Parliament has agreed that secondary legislation is appropriate in those cases where it has given Parliament the power to pass secondary legislation. We in this House now have a highly-respected committee which advises on the question of whether the powers proposed are indeed appropriate. Governments of both parties take the recommendations of that committee, in my view rightly, extremely seriously.

On the practicalities, one of the main reasons for preferring secondary legislation is, as I have said, where the provisions are transitional; where they apply only in specified circumstances, which are themselves time-limited; where they are urgent; where they are needed to enable us to fulfil international obligations; or where they need to be flexible to respond to changing situations. Doing any of those things by primary legislation so that the Parliament Acts are available, risks unacceptable delay, especially if the Parliament Act had to be invoked. It clogs up the parliamentary process. Logically, if primary legislation is required on the first occasion that the issue arises, why would this House agree that in future secondary legislation would be adequate?

The Chairman of the Delegated Powers and Deregulation Committee, the noble Lord, Lord Alexander of Weedon--I am glad to see him in his place--who took part in this debate, fully accepts that the proper use of secondary legislation is essential to the proper workings of Parliament and government. Once we accept that that is the proposition, we end up in this strange situation which it appears that certain noble Lords are arguing for; that is, that this House has the power to veto certain acts of the elected government.

I venture to suggest that even the way in which the power has been used since the war does not indicate a desire to reject, but only to delay. In the case of the Rhodesian sanctions order, the noble Lord, Lord Carrington, said that,

    "if the Government decided, in spite of the advice which we had given them, to re-lay the Order, we should be giving the Commons another opportunity to debate it in the light of what has been said in this House ... I have always thought that this was the proper function of a Second Chamber".--[Official Report, 18/6/68; col. 576.]

The noble Lord, Lord Carrington, was not asserting, even in relation to the Rhodesian sanctions order, a right to veto, which is the right being asserted by the noble and learned Lord, Lord Simon of Glaisdale. Indeed, when the Government did relay the order, as the noble Lord, Lord Goodhart, mentioned, your Lordships' House duly approved it. At the time, given the wider consequences of that first action, the words of the noble Lord, Lord Wade, in the second debate that,

    "to flout the House of Commons, to overrule the elected Chamber, would undoubtedly be ... one of the greatest mistakes this House has made for a long time",--[Official Report, 17/6/68; col. 357.]

seemed prophetic. Did the Rhodesian sanctions order, in those circumstances, indicate that the House had a power to veto? In my view, clearly not. In my view, equally, it was not taken by this House as indicating that it had such a power--see the fact that this House

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then developed non-fatal ways of dealing with the issue; see the fact that until last month it never sought to assert that power; see also the conclusions of the Wakeham Royal Commission which give what the noble and learned Lord, Lord Simon of Glaisdale, described as a "masterful analysis" of the existing position.

Paragraph 7.11 of the report stated:

    "Although in 1994 the House of Lords (on a motion from Lord Simon of Glaisdale) asserted its 'unfettered freedom to vote on any subordinate legislation', in practice there has (so far) been no serious challenge since 1968 to the convention that the House of Lords does not reject Statutory Instruments".

Lord Campbell of Alloway: My Lords, will the noble and learned Lord read the first three lines of paragraph 7.39, which deals with this issue.

Lord Falconer of Thoroton: My Lords, I shall come to that. Paragraph 7.31 says:

    "The powers of the present House of Lords in respect of Statutory Instruments are more absolute than those it has in respect of primary legislation. On the other hand, as we noted ... there has since 1968 been no serious challenge to the convention that the House of Lords does not reject Statutory Instruments. Its influence over secondary legislation is therefore paradoxically less than its influence over primary legislation".

Paragraph 7.39 says:

    "We did consider the option of retaining the second chamber's present absolute veto over Statutory Instruments, particularly in relation to delegated powers".

It continues further down,

    "The absolute nature of the House of Lords' powers in relation to secondary legislation is more apparent than real".

So an objective consideration of the matter by the Wakeham Commission (if I may call it that), concluded that in reality there was no such veto. That is exactly consistent with the constitutional position of this House.

Lord Alexander of Weedon: My Lords, if the Minister is pressing, as he is passionately, that this power should not veto secondary legislation, is he not then making a devastatingly supportive case that there must be a delaying power or this House cannot properly fulfil its duty at all?

Lord Falconer of Thoroton: My Lords, at the moment I am discussing the present position. If we take 1968 as the starting point, this House has operated for the past 32 years on the basis that it has no power to reject secondary legislation. It has been perfectly satisfied with its non-fatal powers. What happens next requires consideration of the kind of ideas that we have discussed this afternoon. I am concerned to identify the present position.

What about the events of 22nd February 2000? In my respectful submission the noble Lord, Lord Goodhart, indicated the extraordinarily flawed nature of his argument in support of what happened on that occasion when he indicated that there was no convention of the kind we have discussed. He said that if the matter had been debated or considered in the course of the primary legislation it would be wrong to

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challenge the secondary legislation. He referred to the Access to Justice Act. As the noble Lord, Lord Goodhart, knows, the Greater London Authority Act established the mayor and the need for an election in that regard. Unlike in the cases of the then Scotland and Wales Bills--if I may call them that in shorthand--there was no suggestion or amendment proposed by anyone that there should be a freepost arrangement. No one thought it right to raise that matter at the appropriate time.

Lord Goodhart: My Lords--

Lord Falconer of Thoroton: My Lords, when I have finished this sequence of remarks the noble Lord can demonstrate where I am wrong. The matter I was discussing was never debated at the appropriate time. As with the Rhodesian sanctions, it is perfectly possible that this House acted in breach of the existing constitutional convention.

Lord Goodhart: My Lords, I suggest to the noble and learned Lord that the problem with the then Greater London Authority Bill was that the failure to include anything in the nature of a free mailshot was simply overlooked. I think that I speak for my noble friends when I say that they assumed that there were powers to create a mailshot. The legislation is extremely complex; there are cross-references to the Representation of the People Act 1983. I believe that a search has produced one reference to a mailshot in the Committee stage in the other place which certainly did not suggest that there would not be one. At the time no one realised that this problem would occur.

Lord Falconer of Thoroton: My Lords, as I say, the measure was included in the Scotland and Wales Acts. In a sense the noble Lord is saying that the Opposition, having failed to raise the matter at the right time, then decided to raise it at the wrong time; that is, when the secondary legislation went through. That may well be an indication of an exceptional circumstance. However, that mistake by the Opposition does not seem to me to justify the breaking of what--if one looks objectively at the history of this matter, as the Wakeham Commission did--was plainly a constitutional convention.

The Government believe that the fact that the process of reform of your Lordships' House has begun does not change the relationship between the two Houses. This House is still untouched by the electorate at large, while the other derives its whole existence from it. The other House must therefore prevail on issues such as this. It is wrong for this House, however strongly it feels, to reject an order which the elected Chamber is content to approve.

I turn briefly to the proposal in the Royal Commission report for a power of delay. As I said earlier, I can see that this is an issue whose case is well worth arguing. Indeed, to some extent I see the force of what the noble Lord, Lord Alexander, said. However, we cannot decide it now. That is obvious from the wide range of views that have been expressed.

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When the noble Lord, Lord Wakeham, spoke in our debate on the Royal Commission report on 7th March he counselled against what he described as "cherry picking". The Royal Commission set out a blueprint for what it thought the functions of the second Chamber should be in the future. It then proposed a method of composition which it thought would best fit the second Chamber to fulfil those functions. The two--composition and functions--went together. Proposed functions which were suitable for the fully reformed House were not necessarily to be treated as suitable for the present transitional House. That is not to say that they are definitely unsuitable. One of the advantages of debates such as today's is that it enables us to explore precisely that kind of question.

However, where the Royal Commission thought that particular recommendations could with advantage be adopted in advance of full reform, it said so. The recommendations in relation to secondary legislation were not in that list for one very good reason; namely, that at least some of the changes to the treatment of secondary legislation which the Royal Commission recommended would require legislation, including many of those which are the subject of this debate.

I should remind the House that the proposal to allow this House to delay secondary legislation is part of a package of measures recommended by the Royal Commission. As many noble Lords have said, they include the establishment of a "sifting committee" to consider the best treatment of individual statutory instruments, particularly, but not exclusively, when the vires for the instrument have got out of step with the contemporary importance of the measures covered by it. They also include a requirement that no statutory instrument should be debated until the Joint Committee on Statutory Instruments has reported, and an extension from 40 to 60 days in the period of time during which a statutory instrument can be prayed against has been made. As many noble Lords have pointed out, both these recommendations were originally made by the Procedure Committee in another place. They have recently been endorsed by a fresh report from that same committee.

That brings me to one of the key reasons--which was specifically identified by the noble Lord, Lord Norton of Louth--for not considering in isolation the proposals in the Royal Commission's report in the chapter relating to secondary legislation. They affect both Houses of Parliament equally. The Royal Commission report stated that its proposals were aimed at,

    "enabling the two Houses to work together in scrutinising Statutory Instruments more effectively".

I believe that that is an important factor which we should continue to bear in mind. It is particularly relevant in this case because the power of delay proposed by the Royal Commission is, of course, a power to send a statutory instrument back to the Commons. They will have to develop procedures to deal with such an arrangement. It is not just a request for a Minister to think again; it is a request for the

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other place to think again. Therefore, before we in this House decide that this is a desirable development, we ought to be certain that it is also acceptable to the other place. It would be a pity if a proposal aimed at increasing the ability of the two Houses to work together became instead a bone of contention between them.

As I said at the outset, I am grateful to all noble Lords who have participated in the debate as it has given us an opportunity to air many of the important issues raised by the Royal Commission and other associated matters.

5.26 p.m.

Lord Dean of Harptree: My Lords, I, too, am exceedingly grateful to noble Lords on all sides of the House who have participated in what has been a most useful and constructive debate. I am also grateful to the noble and learned Lord for listening to the whole of the debate. I am relieved that, although he did not say "yes", he did not quite say "no" either. Therefore I believe that we can proceed on the basis of the clear message that has emerged from the debate; namely, "get on with it now". The time is ripe to sharpen up parliamentary procedures for the scrutiny of delegated legislation. On that note, I beg leave to withdraw the Motion.

Motion for Papers, by leave, withdrawn.

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