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Delegated Legislation

9.2 p.m.

Lord Dean of Harptree rose to ask Her Majesty's Government whether they will support changes in procedure to improve parliamentary scrutiny of delegated legislation.

The noble Lord said: My Lords, as I have no right to reply at the end of the debate, perhaps I may begin by thanking all noble Lords who have agreed to participate in it. They come from all parts of the House. I am also particularly grateful to the noble and learned Lord, Lord Falconer, who has agreed to reply to the debate on behalf of the Government. Furthermore, I am sure that all noble Lords are looking forward with great interest to the maiden speech of the noble Lord, Lord Rogan. When I saw the list of speakers, such is the expertise and distinction

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represented there, that I wondered whether I should simply put my Question and then sit down. However, I realised that that would be discourteous to the House.

It is generally agreed in all parts of the House that delegated legislation has increased, is increasing and will not diminish. Today, legislation covers so many aspects of our personal and business lives and is so detailed that delegation is unavoidable. That is a fact of life. However, I suggest that if we cannot stop it, we must control it better.

I am indebted to the Library for providing some of the historical background. The origins--the germs--can be traced back to Tudor times. In the Statute of Proclamations, Parliament devolved some of its legislative powers to Henry VIII. He was empowered to legislate by proclamation to deal with sudden emergencies. It is quite significant that that statute was repealed on his death in 1547. However, I suggest that this is an early example of the fact that the full parliamentary process can be too slow. Then, as now, it is necessary to provide for speed, flexibility and quick reaction to events. However, such powers should always be subject to the proper parliamentary safeguards.

In your Lordships' House, we have the Select Committee on Delegated Powers and Deregulation. I had the privilege to serve on that committee until I was rotated off, having completed my full term. The committee considers all Bills and whether any delegated powers contained in them are appropriate. It also considers whether those powers should be subject to affirmative or negative resolution. That is an important safeguard for your Lordships' House, in particular with skeleton Bills. All governments will try to introduce skeleton Bills if they think that they can get away with it. For that reason, scrutiny is an important safeguard.

But, of course, that Select Committee is not able to consider the merits of orders outside its terms of reference. The committee's value to the House, while very useful, is limited. Recently, the committee produced a special report--House of Lords Paper 112 of 27th October 1999. I shall quote one sentence from that report:

    "There is a widespread belief that the provision for parliamentary scrutiny of delegated legislation can be substantially improved".

That has come from a committee of your Lordships' House that is highly respected. Indeed, I happened to be a member of the committee at the time, and I would have put it rather more strongly. I tend to think that, at the moment, the procedures are woefully inadequate.

What should be done? I believe that there is a growing view in your Lordships' House that we should be able to amend or reject statutory instruments, given their growing importance. I am not suggesting an absolute veto, but I think that we should be able to send these instruments back to the House of Commons, as we do with primary legislation, and ask it to think again. It would not be an absolute veto. If we adopt a new procedure, it would be wholly appropriate that the supremacy of the elected Chamber should be preserved by the Parliament Acts.

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I do not want to be dogmatic about the procedures. This is a complicated matter. It may well be that there is a greater role for the Select Committee on Delegated Powers and Deregulation or other committees. It may be that different procedures are needed for affirmative resolutions or for prayers against negative resolutions. These are all matters which need consideration. All I am suggesting--it is a very modest suggestion--is that the time is now ripe for all these matters to be considered by either the Liaison Committee or the Procedure Committee in your Lordships' House.

What are the arguments against? I know what the noble and learned Lord will say first of all--it is not for the Government. Of course he is right: it is not for the Government. It is a matter for the House. But your Lordships know very well that no change in procedure is likely to succeed unless it has the support of the government of the day. For example, the Moses Room Committees would never have come into operation had they not at the time had the support of my noble friend Lord Cranborne. The new committee in another place, the Westminster Hall committee, would never have come into operation had it not received the blessing of the Government. I am saying that any change in procedure needs the support of the government of the day.

The next argument could be "Wait for Wakeham". I know that the noble and learned Lord will produce that argument. He did so at Question Time on 29th November. Of course we will all be very interested to hear what the Royal Commission produces, but the reality is that the procedure of your Lordships' House is a matter for your Lordships' House. We should decide it and we should get on with it.

Another argument could well be that we are an interim House and we should not mess about with procedure. But we have the authority of no less than the noble Baroness the Leader of the House that we are now more legitimate. We have 92 hereditary colleagues who have been recently elected. They are much more legitimate than me. Furthermore, it is normal for any changes in procedure to be introduced on an experimental basis. We say, "Let's have a go and see how it works out". If it does not work out, we do not have to pursue it. If it is successful, we have a great thing to offer to the reformed House. We will be able to say, "We have improved our procedures on delegated legislation. Here it is for you to take forward".

In conclusion, I think it is generally agreed that neither House is able to do a proper job in scrutinising delegated legislation. The failure is more blatant with every year that passes. I hope your Lordships will agree that the time is ripe for this matter to be considered and for suggestions for reform to be made by the appropriate committee of your Lordships' House. I hope, too, that Her Majesty's Government will give this proposal a fair wind.

9.11 p.m.

Lord Rogan: My Lords, I crave the indulgence of your Lordships' House to make my maiden speech. I

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rise to my feet with three emotions. I have a feeling of trepidation at the task which lies before me, not least the immediate one of addressing your Lordships for the first time today. Regarding my long-term task, I hope that I am able to make a worthwhile contribution to the workings of the House. I also have a feeling of humility as I stand before your Lordships today knowing the contribution that you in this House have made to British public life. Coupled with that feeling of humility is a feeling of pride that I have been "chosen" to serve in your Lordships' House.

By and large, those are the same emotions I experienced some four years ago when I was elected chairman of the Ulster Unionist Party. In that role, I hope that I have helped to guide that party through the most politically interesting and challenging years in the history of Northern Ireland. Those years have seen the devolution of many powers from Westminster to the new Executive and Assembly in Northern Ireland.

Just as Northern Ireland is experiencing change and development, so, too, is this House; and with the report of the noble Lord, Lord Wakeham, there will be more change to come. I do not want my contribution to change and development to be an end to the tradition whereby new Peers are heard in silence, so I shall be careful what I say in respect of changes in procedure.

The devolution of power not only to Northern Ireland but also to Scotland and Wales will have a major impact on how we conduct our business in this House. Indeed, the transfer of responsibility for primary legislation to the devolved administrations will mean also a transfer in responsibility for delegated legislation.

In the new Northern Ireland Assembly, the basic procedures for Bills--that is, primary legislation--are described at paragraph 26 of the Belfast agreement, and are set out in much greater depth in Sections 5 to 15 of Part II of the Northern Ireland Act 1998. To put it mildly, the legal restraints are extremely tightly drawn and the mechanisms for the control of the various stages of a Bill are uniquely complex. In practice, however, some of the provisions established for the passing of primary legislation on a day-to-day basis may prove to be unnecessarily convoluted for the operation of efficient government.

In contrast to the detailed requirements specified for the making of laws--also known as Acts--Northern Ireland delegated legislation, generally referred to in Northern Ireland as "statutory rules" rather than "statutory instruments", scarcely merits a mention. I wonder whether that is indicative of a widespread approach to that important area of law.

Nevertheless, the Assembly has set out in its Standing Orders how the scrutiny of statutory rules will operate. It may be thought a little cumbersome, but I am glad that it is intended to appoint an officer of the Assembly to be known as an Examiner of Statutory Rules. Such a position has been filled, almost without interruption, since the 1974 power-sharing Executive collapsed. His microscopic inspection of delegated legislation has been a striking

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feature under Direct Rule--something much appreciated by many Members of both Houses, most notably the late Member for Down South, the right honourable Enoch Powell--but perhaps not always by the civil servants, who were subject on occasions to the well-deserved strictures of the examiner. This field of delegated legislation will be an interesting one to watch, especially in the light of the constitutional developments in Scotland and Wales as well as Northern Ireland.

This Chamber represents a long tradition in providing checks and balances in the legislative process. The noble Lord, Lord Strathclyde, is to be congratulated on his recent expression of views on the need for change over the control of secondary legislation. We shall watch developments in all four corners of the kingdom.

Before speaking today, I was advised that a maiden speech should be non-controversial, brief and humorous--three characteristics for which a dour Ulster Presbyterian is not well known. I trust that I have given due respect to the tradition of non-controversy. Short of telling an Irish joke, I do not see how I might have been humorous. However, looking at the clock, I see that at least I have been brief.

9.19 p.m.

Viscount Cranborne: My Lords, it is a real pleasure to follow the noble Lord, Lord Rogan. So far as I can remember, the last debate that we conducted took place under very different circumstances. There was much liquid refreshment around, although I suspect that the noble Lord was not as enthusiastic a participant in that part of the proceedings as I was. I should like to pay a heartfelt tribute to the admirable speech, if I may be impertinent, that he has just delivered with his usual courage and originality. The noble Lord has broadened our perception of the subject under discussion. I also pay tribute to the outstanding part that he has played in the affairs of the Province not only in the past few months but for many years. We are privileged to have him as a Member of our House and greatly look forward to his future contributions, confident that they will be up to the high standard that he has set for us all during the course of this evening's debate.

I also express appreciation to my noble friend Lord Dean of Harptree for his initiative in raising this matter this evening. I particularly enjoyed his version of Dunning's motion which is very appropriate to the matter that we are debating this evening. As my noble friend pointed out, there is a great deal of secondary legislation about. I doubt whether that phenomenon will be reversed. Like my noble friend, I suspect, I have no inherent objection in principle to this. Those of us who have had anything to do with government or the management of its business recognise that often logic, convenience and the sensible arrangement of legislative powers favour the granting of substantial delegated powers in a Bill. However, as my noble friend observed, governments of all stamps are prone

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to be tempted to introduce rather more skeleton Bills than certainly those who find themselves in opposition would approve.

The exception to the principle is the Henry VIII clause. I say to the noble and learned Lord who is to reply this evening that I am glad that the Government have adopted almost slavishly the example that I for one tried to set when we on these Benches sat on the other side of the Chamber; namely, to follow very closely the recommendations of the Delegated Powers Scrutiny Committee (as it then was) as a defence against excessive delegated powers and Henry VIII clauses in primary legislation.

This is not a new subject for debate in your Lordships' House. I well remember some years ago replying on behalf of the then government--I have a sneaking suspicion that the noble and learned Lord will refer to this--in a debate initiated by the noble and learned Lord, Lord Simon of Glaisdale, well supported by the noble Earl, Lord Russell, in which it was asserted that this House retain its unfettered powers to reject delegated legislation. I did not quarrel with that assertion. I suggested, nevertheless, that it would be a good idea that any change that occurred should not lead to undesirable gridlock, and I adhere to that principle. But I worried then as now--as a member of the government it was more difficult to do so as openly as I would have liked--about the lack of any mechanism for greater scrutiny of the powers that all governments seek through delegated legislation. In this House we can only reject it if we break the convention established as recently as 1968. We can do no more to amend such legislation. I believe that this state of affairs gives the executive very substantial powers without the need for it to subject itself in practical terms to any detailed scrutiny. We cannot amend orders.

This is a substantial subject which we do not have time to examine in detail this evening. I close merely by asking the Government whether when the noble and learned Lord comes to reply they will give an undertaking that at the least they will try to establish a mechanism, perhaps through the usual channels and with the involvement of another place, by which this lacuna in our legislative arrangements may be filled. If the noble and learned Lord were able to give that clear undertaking, he might also be able to find time, again through the usual channels, for this House to give greater attention to the establishment of such a mechanism between both Houses of Parliament and how we should go about it, and for a debate on the Floor of the House, perhaps in government time.

9.25 p.m.

Lord Campbell of Alloway: My Lords, one addresses a thin House, about 20 Members--not even a quorum--at the end of the day on a matter of vital concern to this House. It is my privilege to follow my noble friend Lord Cranborne, whose speech on the hallmark debate of the noble and learned Lord, Lord Simon, asserted the entitlement to accept or reject, approved the convention not to make an outright

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challenge and warned against the exercise of crude power which could result in stalemate without resolution.

The noble and learned Lord, Lord Simon, took the view that the right to reject should be exercised where subordinate legislation entrenches on policy or there is an unusual or unexpected use of delegated power such as attracted the attention of the Joint Select Committee or the Delegated Powers and Deregulation Committee.

At the outset, do we all not have to seek to distinguish between entitlement and the exercise of entitlement? Both derive from convention, as represented from time to time by Standing Orders and the Companion. A series of ad hoc arrangements as to the exercise may crystallise in convention which, in effect, abrogates an erstwhile entitlement. Is it not all a matter of broad consensus as to whether such has occurred?

The conventions of the old House were devised to ensure orderly government and the avoidance of stalemate when there was a massive Conservative/Whig position in this place in the way of opposition--a situation which does not exist today and is never likely to arise again. In these changed circumstances the new House must surely examine the conventions of the old House and develop new conventions relevant to the due discharge of our functions.

As a foot soldier in the debate, I propose to defer to the noble Earl, Lord Russell, not knowing what he is going to say--such is my respect for him. This is not a political debate.

If we are to control abuse of executive power by resort to delegated legislation, the right to reject must be affirmed. Some new convention should be developed--in the form perhaps of a divisible Motion--to ask another place to relay the statutory instrument in some amended form which, if not so relaid, could be rejected. Is it not of cardinal importance to insert this right of rejection and to refute the view expressed by the noble and learned Lord, Lord Falconer of Thoroton, that convention introduced in the wake of the Rhodesian sanctions order--now on pages 187-8 of the Companion--abrogated the right to reject; and his contention that the critical amendment or Motion which by convention is not divisible and has absolutely no practical effect is, in his view and his contention on behalf of the Government, wholly acceptable? That must be rejected.

For if such a Motion were to be tabled, is it conceivable that another place would ever relay an amended version save on the personal intervention of the Leader of this House, as happened once in my presence to my own knowledge under the aegis of Lord Whitelaw, who summoned the Minister and told him that if he did not amend the regulation this House would reject it? How many Leaders of this House have that power of persuasion? I say that in the presence of more than one distinguished former Leader of the House.

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A new convention must be developed alongside "Critical Amendments and Motions" referred to on page 187 of the Companion to the Standing Orders which has no practical effect. Why? It is in order to afford some effective control over abuse of executive power. As the noble Baroness the Leader of the House acknowledged on 3rd November, this is a matter for the House and it is master of its own procedures. I hope that the Leader of the Opposition may institute a full debate before such matter is ever referred to any Select Committee.

Surely any new form of divisible Motion proposing amendment must, as before, be qualified with guidelines as to restraint. The objective of this speech is not to engender confrontation with another place.

9.31 p.m.

Lord Prys-Davies: My Lords, I thank the noble Lord, Lord Dean of Harptree, for the opportunity to discuss the need to improve parliamentary scrutiny of delegated legislation. I speak in support of the Question, but I venture to develop a broader approach to the Question which has been anticipated in part by the noble Lord, Lord Rogan, in his magnificent and moving maiden speech.

At the outset I am bound to pay tribute to the work of the Joint Committee on Statutory Instruments, and the Delegated Powers and Deregulation Select Committee and their dedicated legal advisers. I recall my involvement for a number of years with the joint committee, and earlier this year I was privileged to become a member of the delegated powers committee. Nothing that I may say this evening detracts in any way from my admiration for their work. All the same, there are problems.

By now about 2,500 pieces of delegated legislation a year come before Parliament. They set out detailed provisions, often laying down precise conditions or restrictions which may be of secondary significance to Ministers. But for many people to whom they apply they are matters of great practical importance, of equal importance to the general policy embodied in the parent Act. But there are, and have been, complaints for a long time that the scrutiny of delegated legislation is inadequate. That concern has been expressed by many bodies including, for example, the TUC, the CBI, the National Consumer Council, local authorities, the Law Society and the Bar Council. A great deal of the report, Making the Law, published in 1992-93 by the Hansard Society commission on the legislative process relates to the problem. In paragraph 264, the report concluded that the scrutiny of delegated legislation in Parliament is inadequate and unsatisfactory, but it need not be.

Notwithstanding the report of the Hansard Society commission, it seems to me that the underlying problem has not changed all that much, if at all, since 1992, save for the contribution of the Delegated Powers and Deregulation Committee. However, as we heard from the noble Lord, Lord Dean, that committee is unable to comment on the substance of the order.

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There are in being two significant processes which were unknown in 1992. First, the Deregulation and Contracting Out Act 1994 introduced new consultative processes in respect of draft deregulation orders. Should anything be wrong with the draft deregulation order, there is a good chance of it being spotted in the course of widespread consultation and being dealt with before the instrument is finally settled.

Major instruments of delegated legislation are no less important than deregulation orders. I therefore believe that there is a strong case for introducing consultation processes similar to those under the deregulation Act 1994, but with adaptations, in respect of making delegated legislation especially for the major instruments. That raises the question of what is the criteria for deciding what is a major instrument, but I am sure that there can be enlightenment on that.

I turn to the second significant development, which was touched upon by the noble Lord, Lord Rogan. The National Assembly for Wales has taken on the responsibility of the Secretary of State for making subordinate legislation in the devolved fields in Wales. The Assembly is without powers of primary legislation, but the examination and amendment of subordinate legislation is one of its important tasks. The scrutiny is entrusted to a subject committee whose members have a special interest in it. The committee may take evidence and amend the draft order. A very important feature of the procedure is that the Assembly Secretary must prepare a regulatory appraisal of the likely costs and benefits of complying with the draft order, unless in the circumstances it is inappropriate or not reasonably practicable.

In paragraph 369 of the Hansard Society commission report, there is a suggestion that the commission favours a legislative role for the departmentally related Select Committees. I believe that something along those lines cannot today be easily dismissed as a far-fetched fantasy as it is now happening in the National Assembly for Wales.

That brings me naturally to my final point. It may be that our hopes in Wales may be misconceived, but I believe that, as the Welsh Assembly is without power to make primary legislation, there will over time be a demand for more matters to be transferred to subordinate legislation to be scrutinised by the Assembly and amended if need be if the full benefits of the devolution settlement are to be realised.

Given that pressure, and the pressure in England for more detail to be transferred to delegated legislation, there is another reason for believing that the problem identified by the noble Lord, Lord Dean, cannot remain unaddressed indefinitely by Westminster.

This short debate has been an opportunity for us to put forward views to which I hope the Government will listen and I hope that we shall learn their views.

9.38 p.m.

Lord Norton of Louth: My Lords, I am delighted to follow the interesting speech of the noble Lord, Lord Prys-Davies, which gave us tremendous food for thought. I also welcome this debate on an important

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topic and congratulate my noble friend on initiating it. As he said, delegated legislation has been with us for a long time. The principle of lawmakers delegating rule making has a somewhat more ancient lineage than he suggested. It is mentioned by Plato in The Laws and in this country it dates back to Tudor times. The Statute of Sewers of 1531 is offered as the first significant example of enabling legislation. However, the introduction of procedure to regulate the making of such legislation is a 19th century phenomenon. It is only in the present century--which, I might add, still has just over a year to go--that some form of systematic parliamentary scrutiny has been established.

The problem, which has been touched on, is that the scrutiny has not kept pace with the sheer volume of delegated legislation. The number of statutory instruments has increased by 50 per cent over the past 25 years. In some years, statutory instruments cover more than 9,000 pages. John Garrett, when he was a distinguished Labour Member of another place, wrote that,

    "the use of delegated legislation on the scale we see today is clearly an abuse of Parliament".

The Joint Committee and the Commons Select Committee on Statutory Instruments have variously reported on the difficulties faced in ensuring effective scrutiny. The need to strengthen scrutiny of statutory instruments is overwhelming, and is widely recognised as such. That need is not confined to your Lordships' House. It involves both Houses working in a complementary manner, as they do in the scrutiny of European legislation. I welcome greatly the fact that my noble friend's Question relates to parliamentary scrutiny and not simply to scrutiny by your Lordships' House.

There is a case for widening the scope of scrutiny by committee. The terms of reference of the Joint Committee are drawn fairly narrowly; a point which has already been touched on. There is a case for allowing the committee to consider whether statutory instruments are flawed other than on essentially technical or procedural grounds.

There is also a case for extending scrutiny by committee. In the other place, statutory instruments subject to affirmative resolution stand referred to Standing Committees on Delegated Legislation. Why not make those committees sessional committees, similar to the European Standing Committees, and give them particular sectors to cover? That might ensure more structured and informed scrutiny; it may also encourage a little greater interest on the part of Members. So, too, might giving the committees power to make substantive recommendations, rather than simply debating a statutory instrument on a neutral Motion and then reporting that they have considered it. The present relationship in the other place between the Standing Committees and the Motion put to the House is untenable and needs to be addressed.

What of your Lordships' House? I turn to the two issues that are of particular concern and have been mentioned: should statutory instruments be amendable, and should the House exercise its power to

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annul delegated legislation? I realise that there are precedents for amending delegated legislation, but as the Procedure Committee in the other place noted in 1986, there are considerable procedural difficulties. I am, however, persuadable that statutory instruments should be amendable, and my noble friend Lord Strathclyde has put forward a proposal, in his recent Politeia lecture, that merits serious consideration. Implementing his proposal may well enable this House to fulfil an important and constructive role, similar to that played in primary legislation. Having said that, I recognise that the scope for amending delegated legislation is quite narrow.

The power to say "aye" or "nay" to a statutory instrument is a power at the disposal of both Houses. My view is that your Lordships' House should be prepared, if necessary--I stress that word--to exercise that power. I do not say that because there is a new House. I took the same view when the old House existed. I have never understood--or rather, never accepted--the rationale underpinning the convention that this House does not divide on a Prayer to annul an instrument. The situation is not analogous to that covered by the Salisbury convention. I appreciate that delegated legislation is not subject to the Parliament Acts. However, secondary legislation is not the same as primary legislation, not least because secondary legislation is rarely, if ever, promised in a party's election manifesto and because if a statutory instrument is rejected, another instrument can be laid. As such, the treatment of delegated legislation by this House should be seen as analogous to its treatment of amendments to legislation rather than its treatment of the principle on Second Reading.

The House has previously resolved,

    "That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration".

To exercise that freedom raises no great constitutional issues; it simply requires a department to take away a statutory instrument and, if necessary, come back with a better one. A self-denying ordinance on the part of the House might kick in at a later stage, or, as my noble friend Lord Strathclyde suggested, the proposal could be embodied in primary legislation and hence be subject to passage under the Parliament Acts. However, having said that, I recognise that the use of a vote is a blunt, negative weapon. As has already been suggested, I believe that we should be looking at constructive ways of carrying out scrutiny.

Given that, I want to end with a suggestion. This is a subject which lends itself to consideration by an ad hoc committee of your Lordships' House. A committee could assess the scale of the problem and recommend the most appropriate procedures for this House to adopt. Such an inquiry could encompass not only the scrutiny of statutory instruments but also the failure in some cases to bring in orders, not least some commencement orders. There is a great deal to be considered.

This House has the membership that allows statutory instruments to be subject to informed scrutiny, and I see no reason why the House should not

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play to its strengths. I believe that the Government, for their part, should welcome any steps which will serve to improve the quality of legislation in this country.

9.45 p.m.

Earl Russell: My Lords, I thank the noble Lord, Lord Dean of Harptree, for introducing a Question which is both important and timely. I also pay tribute to two other noble Lords: first, the noble and learned Lord, Lord Simon of Glaisdale. A debate on regulations without him is, indeed, like Hamlet without the prince. I wish the noble Baroness, Lady Simon, a full and happy recovery and look forward to seeing the noble and learned Lord in his place when this subject next arises.

The other noble to whom I owe thanks is Lord Rippon of Hexham, who guided my first faltering steps in this subject and who taught me the importance of distinguishing form from substance and of preserving discussions on procedure from what the 18th century used to call "the rage of party". He is, of course, the spiritual father of the Delegated Powers and Deregulation Committee, of which the noble Lord, Lord Dean of Harptree, has been such a distinguished member. The House is in his debt.

The law is made by both Houses, though not by both Houses in an equal capacity. That means that there must be an input from both Houses in the making of law which creates any controversy. While I have been here, I have observed a change in the matters brought forward by regulation towards the bringing forward of more and more high level, controversial matters to be brought in by regulation. I shall not list them. This is a not a party debate and it is not my purpose to start a party argument.

However, a number of them are measures which we have committed ourselves to repeal in successive election manifestos. Surely it is absurd that a measure should be important enough for us to commit ourselves in an election manifesto to repeal it and yet we should be quite unable to take any vote about it in the course of its passage through this House. That is a situation which must change. I cannot help thinking that the change to bring in more dramatic measures by regulation and the increasing readiness to challenge regulation are two processes which are interdependent, as, indeed, logically they should be.

Since the debate of 20th October 1994 when this House resolved its unfettered freedom to vote against subordinate legislation, we on these Benches have done so three times: once on the Port of Ipswich privatisation regulations--a Division called by my noble friend Lord Avebury; and twice on single parent regulations--just to be impartial, one from the Conservative Benches and one from the Labour Benches, both done by myself.

Therefore, as far as we on these Benches are concerned, the noble Lord, Lord Dean of Harptree, is asking us to continue what is already our existing practice. That is something we are quite ready to do. Of course, we accept that that would involve the extension of the Parliament Acts to cover regulation. I

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imagine that we would wish not to vote down a regulation on a matter which is covered by the Salisbury convention. But I believe that amendment is more congenial to the spirit of this House than rejection. The noble Viscount, Lord Cranborne, is of course right that in normal circumstances a regulation is unamendable. But, of course, nothing is ever quite that simple.

Under the Government of India Act, the Census Act and one or two others, there is a procedure which allows Parliament to pass amendable regulations. If the noble Viscount cares to look at the Committee and Report stages of the student loans Bill 1990, he will find I once had the good fortune to carry an amendment to that effect by the princely majority of one vote. But it is the proverbial "enough" and it caused considerable surprise when it went to another place. That precedent can be considered again.

I listened with care and interest to what the noble Lord, Lord Prys-Davies, said about the deregulation procedure and also to the remarks of the noble Lord, Lord Norton of Louth. There is a procedure available which achieves what the noble Lord, Lord Campbell of Alloway, was asking for, and by sheer coincidence, if your Lordships look at the Official Report of 20th October 1994, you will find that I moved such a Motion immediately at the conclusion of the debate of the noble and learned Lord, Lord Simon. It is a Motion which asks that the regulations be not proceeded with. I was advised by the Table that that was a fatal Motion. The Motion goes on to ask the Government to "lay amended regulations", leaving out this, that and the other, changing whichever point it is necessary to change.

Looking again at the Motion which I moved on that occasion, it lays out almost exactly what this Government have since done, but it took the intervention of the European Court of Justice to achieve that. I prefer remedies to be rather nearer to hand.

For any of that to work, as the noble Lords, Lord Norton of Louth and Lord Prys-Davies, have been saying, there must be give and take. For my part, I am very happy to take part in give and take. But it takes two to tango. Until the Government realise that they cannot always have their own way, there is no chance of give and take.

The Government should reflect on how lucky they are. Other primary legislative chambers have to cope with an elected senate and a written constitution and are far more restrained than this one ever is. So if the Government can go a little way, then we can compromise. If not, the noble and learned Lord knows what it is that concentrates the mind wonderfully.

9.52 p.m.

Lord Pilkington of Oxenford: My Lords, I hope that the Minister will support what most of us in this House regard as the very modest proposals put forward by my noble friend. Moreover, I hope that he will be prepared to give us the Government's opinion on the

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moral issue in advance of the Wakeham Commission and any decision of the Joint Committee of both Houses.

The fact is that all of us speaking in the debate tonight are enormously and genuinely worried about the power which the British executive possesses. It could be argued, as the noble Earl, Lord Russell, has already hinted at, that it is one of the most powerful executives in the modern world. No checks are provided by a written constitution nor by a system of separation of powers nor by the chance of history. The continental parties tend to fragment. The fact is that the main basis for the power of the executive which the Minister represents is the great power and strength of the British political party. I hope that the noble and learned Lord will give attention to that fact which lies behind the debate this evening and which will, I am sure, lie behind many debates in the future.

Since 1945 few rebels against their parties have managed to secure re-election. Over the past decade or recently, most parties--my own included--have increased central control over candidates. Further, there is the growing professionalism of politics to which the noble and learned Lord must give attention in the nature of the democratic process. That is quite simply that young men and women leaving university with a good degree join a think tank; become a special adviser; and then, strange to say, they get a constituency. That has meant that since 1945 many are reluctant to rebel. If electoral disaster strikes, we all know, in this House and elsewhere, that their best chance of securing a job outside politics must be enhanced by securing ministerial office.

The noble Lord must address the fact that the executive, relying on loyalty and discipline, can usually secure, as it has over the past two or three decades, all that it wants. That is especially true when the party has a large majority as the party opposite has known in the 1980s and as we are experiencing today.

One advantage most of us in this House possess--dare I suggest, the noble Lord included with a large income in another walk of life--is our independence. We are nominated for life. As one noble Lord said in this House: there is nothing that the executive can give us that we want and there is nothing we possess that the executive can take away. Thus, paradoxically, against the principles of democracy, this House is able to give more detailed attention and care to delegated powers than is the case in the elected Chamber. I hope that the noble Lord will not speak of democratic accountability without at least making a nod in the direction of what produces democratic accountability, which is a party label hung round one's neck. He knows as well as I how that label gets round one's neck.

I am sure that all of us in this House will agree that over the past few decades--I would go further and agree with my noble friend Lord Norton and say since the 1880s, and particularly because of two world wars--there has been too massive a growth in delegated powers being given to Secretaries of State. When I was on the Front Bench, for example, many of the crucial details of the implementation of the new

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powers in the Education Act, matters such as those mentioned by the noble Earl, Lord Russell, which were the subject of party manifestos, were subject to delegated powers from the Secretary of State.

Surely it could only assist good government if this House was able to secure alterations and improvements in these orders either by negotiation or, ultimately, threat of rejection. There is only one body in this House that has such powers and it is relatively unknown. I refer to the Ecclesiastical Committee. The powerful Church, the prelates, propose to take away powers from the church wardens. The Ecclesiastical Committee, which only has powers of rejection, not amendment, said, "We'll reject". Amazingly, they then proposed amendments. We could do that. The power of rejection, even on a powerful executive, is amazing.

It would be a great inconvenience to the executive but in the end, dare I suggest, it would secure good government and more effective legislation. However, I would ask that we do not use the words "democratic accountability" without party control.

9.57 p.m.

Lord Skelmersdale: My Lords, I believe that it was Andy Warhol who said that the world is run by people who turn up. It therefore grieves me to note that the only Government Back-Bencher to feel that the debate is worthy of vocal attention is the noble Lord, Lord Prys-Davies, who was a former colleague of mine on the Joint Committee on Statutory Instruments.

There is no doubt from this debate and, indeed, previous debates, that over recent years, secondary legislation has become a major legislative tool of all governments, often sketchily reviewed by Parliament as a whole. This is not to decry the work of the Joint Committee on which the noble Lord, Lord Prys-Davies, and I had the honour of serving and, in my case, currently serve. The job of that committee is to inform Members of both Houses, first, of what statutory instruments exist and which ones have had points taken by the committee which, of course, are only within the committee's terms of reference. To paraphrase, these are when they impose charges on the public revenues; exclude the original Act from challenge in the courts; are retrospective; have a delay in the publication or laying or when they come into operation before they are laid; where they are doubtfully intra vires; and where they suffer from unclear and defective drafting.

The Joint Committee is therefore barred from discussing policy. I have lost count over the years of the times I have raised what I regard as perfectly good points, and been told by successive chairmen and legal advisers, "That is policy". That is the nub of the problem. Unless statutory instruments have to be debated, as in the case of affirmative instruments, or--and this is erratic--a debate depends on a Member of either House picking up a negative instrument and tabling a Motion to discuss it, they go by default.

In a word, it is "chancy". If one is quick off the mark, one can table a Prayer, which in this House the Government must find time for within 40 days;

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otherwise we have to resort to the sort of device used in the past by the noble Earl, Lord Russell; that of a Petition to withdraw and there is no copper-bottomed guarantee that it will be debated at all. That must be bad for democracy and my noble friend Lord Dean is quite right; something must be done.

Affirmative instruments do not really fare much better. Over the years, as the noble and learned Lord, Lord Falconer, reminded us the other day, in this House the practice of not dividing has become an accepted one. The noble and learned Lord called it a "constitutional convention"; but it is not. It is a custom of the House and, as such, is not inviolable. Customs can, after all, be changed. Back-Benchers in particular have always retained the right to divide and one day I have no doubt that they will. The fact that they have not done so since 1968 is neither here nor there. So I am not in the least worried about affirmatives. The mechanisms are in place.

However, the negatives are a totally different matter; and I see two mischiefs. As I have said, the first is that a mechanism must be found off the Floor of the House, otherwise too much Chamber time is taken up to debate the policy out of the current Praying time. I must confess that I am not attracted by the idea that this House should pass a Motion requesting another place to amend, however temporarily, a statutory instrument. As I said the other day, it would delay the implementation of the whole order, even the bits that this House decided were acceptable, and place the legislation in limbo. I do not see that that would be to anyone's advantage.

I can even see a time when your Lordships could delay the commencement of an Act of Parliament, which is often done by negative resolution order. It would swing the powers too much in the favour of the Opposition and Back-Benchers and no government could allow that. What any government should consider is one of two things; either to allow the Joint Committee to consider matters of policy and report them to the House, on which there could, if Members took the point, be an effective delaying Motion of, say, one month, unless countermanded by another place; or they could set up a Select Committee of this House to advise on policy along the lines of the oft-mentioned Select Committee on Delegated Powers and Deregulation. It would not have to meet very often, perhaps only when the JCSI minuted that a Member asked a question which was vetoed as a policy matter; or perhaps at the request of a forum of Members. That would be for future discussion and decision.

Another thought occurs to me. There have been times in the past and no doubt will be again when the reports of the Joint Committee are delayed. That cuts into Praying time and can, in extreme circumstances, mean that Praying time is totally used up before noble Lords are informed of the committee's discussion. In those cases, a Prayer is totally valueless and there is, as I said, no pressure on government to find time for a slightly more general debate. Instead of, as currently happens, Praying time running from the time an order is laid, why cannot it run for a shorter period; for example, from the date of the JCSI reports?

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Alternatively, what is so magic about 40 days? Why not 50 days or 60 days? Why not 40 sitting days which would be very logical and acceptable to everyone?

None of those suggestions would affect the paramountcy of another place, which--I agree with those noble Lords who have spoken--is very important. One of my son's more critical remarks is, "Dad, get real!" Well, I, for one, think that I have done so.

10.5 p.m.

Baroness Williams of Crosby: My Lords, perhaps I may begin by adding my congratulations and thanks to those already expressed to the noble Lord, Lord Dean of Harptree, not only on tabling this debate but also on his service to the committee, which I understand to have been a most distinguished and wise one. We are all extremely grateful to him for giving us this opportunity to debate the matter. I should also like to add a few words of great appreciation as regards the noble Lord, Lord Rogan. He has joined us after an extremely important and significant experience in Northern Ireland. Indeed, the noble Lord has lived through more change in the past week than the rest of us have done in most of our lifetimes. I am sure that he will bring to this House a great deal of knowledge based upon that experience which will enlighten our debates.

The fact that I am participating in this debate is perhaps rather surprising as I am not a lawyer, nor, indeed, any kind of expert on procedure. I am driven by just two things, both of which I should like to mention. Then, at the end of my remarks, I should like to draw together some questions for the Minister. I am driven partly by the concern which I have felt in the past few months, and which I felt in a similar way under the previous Conservative administration, about the extent to which legislation now coming before this House is amended very late indeed in the legislative process. This is not an aspect of change and procedure that we have so far discussed.

Frankly, when major amendments embodying delegated legislation and major powers for regulation are brought in at such a late stage in a Bill's proceedings that neither the Committee stage nor in some cases even the Report stage enable us properly to scrutinise and debate the legislation, one can only say that the whole function of the legislature in our system is beginning to be seriously undermined. I do not believe that this is because of the ill will of either this Government or their predecessor. It flows from an extraordinary desire on the part of governments to legislate more and more; and often to do so on the basis of having been given the go-ahead by the legislation committee, as a sub-committee of Cabinet, without the departments concerned being adequately prepared to bring forward a properly thought-through Bill.

I say that with no political desire to embarrass anyone. It is a process that we have all seen becoming cumulative. But, frankly, it frightens me. We are not

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serving our citizens well. More and more legislation is reaching the statute book that is simply disgraceful in terms of its drafting, clarity and adequacy.

With regard to procedure, we have the further difficulty in this House of the long-understood conventions that restrain the contributions that one can make both on Report and on Third Reading. Indeed, they now literally stand in the way of our proper discussion of such matters. That is an issue which this House must now address.

I turn to the remark made by the noble and learned Lord, Lord Simon of Glaisdale. He, like my noble friend Lord Russell, deserves the great thanks of this House for his continual dedication to the question of how to make democracy work in respect of secondary legislation. When this matter was previously discussed at length in October 1994, the noble and learned Lord remarked:

    "The other place seems to be increasingly under the hand of the Executive".--[Official Report, 20/10/94; col. 358.]

He said that in 1994 when a different government were in power. Indeed, the noble Lord, Lord Pilkington of Oxenford, made a similar point today.

I simply want to add two further points. Unquestionably, the Cabinet, as a collective area of responsibility, has weakened over the past 20 years. It is not, frankly, the power that it once was; and Cabinet committees are increasingly weak or replaced by ad hoc committees that do not have the same influence that Cabinet committees once had. I speak with at least a little knowledge of this matter having spent six years in the Cabinet and having seen this process begun and carried forward under successive governments.

Today we have something approaching the beginnings of a presidential system. I believe that is largely driven by demands in the media to be able to point to one leader as in some way symbolic of the whole position of a government. However, we do not have a presidential system in the United Kingdom and we have none of the checks and balances that a presidential system such as that of the United States works within, sometimes to the extent that much of its legislation is nullified by a process of gridlock.

We are at the other end of the spectrum, with an extraordinarily powerful executive and a relatively weak legislature. That brings me to my final point. In the few years that I have spent in this House I have come to appreciate the extraordinary importance of the Select Committee on delegated legislation. I believe that it is now one of the least understood pillars of our democracy. Its role is of great importance. I have three questions for the noble and learned Lord, whose considerable intelligence should be brought to bear on this matter.

First, what view does he take of the proposal that the committee should have the right to propose the amendment or even the annulment of secondary legislation? Secondly, should there be any system of scrutiny to question statements made by Ministers about the compatibility of legislation with the European Convention on Human Rights, because I

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am dubious about the extent to which we can rest upon a simple statement? Thirdly, in his view do we not now need extensive powers, as suggested by the noble Lord, Lord Prys-Davies, to look at the relationship between legislation passed by devolved bodies and the situation and standing of the legislature at Westminster? I hope that he will address those questions which I believe are of vital importance to the life of our democracy.

10.11 p.m.

Lord Mackay of Ardbrecknish: My Lords, as is witnessed by the number of noble Lords who have taken part in this debate, this has been an interesting and timely debate. We are all indebted to my noble friend Lord Dean of Harptree for introducing it.

I particularly welcome the noble Lord, Lord Rogan, to the House. I thank him for his maiden speech. He obviously comes to us with an important background in industrial affairs in Northern Ireland and of course also in political affairs. He said that he had been advised to be brief, uncontroversial and humorous--something of a problem for a dour Ulster Presbyterian. As a dour Scottish Presbyterian, I am seldom brief--although I shall be this evening--I am never uncontroversial, but I always try to be humorous!

The convention with regard to secondary legislation has existed only as between the Front Benches of the major parties in this House; that is, the Conservative and Labour Parties. It is fair to say that the Liberal Democrat Benches, especially as represented by the noble Earl, and the Cross Benches, have never accepted it. Indeed on a number of occasions the noble Earl, Lord Russell, used his ingenuity to get round the convention. I believe that, in a debate introduced by the noble Earl some five or six years ago, the House passed a resolution. The resolution appears at page 182 in the Companion to the Standing Orders,

    "this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration".

I do not believe that I am giving away a secret when I say--

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