Parliament, Government and Secondary Legislation: Lords Select Committees respond to the Strathclyde Review

I wrote in December about the Strathclyde Review, which took place at great speed in the autumn against the backdrop of the House of Lords’ refusal to allow the enactment of secondary legislation on tax credits. The Review — set up by the Government — recommended stripping the Lords of its power to veto statutory instruments by investing the Commons with statutory authority to override the Lords in the event of opposition to secondary legislation. Two House of Lords Select Committees — the Constitution Committee and the Delegated Powers and Regulatory Reform Committee — have now published reports that are highly critical of the Strathclyde proposals.

The report of the Constitution Committee

In its report, the Constitution Committee rejects the notion that the tax credits affair amounted to a “constitutional crisis” and says that a “single Government defeat … does not seem a sound foundation upon which to base significant and lasting reform” in this area. Indeed, the Committee argues that the Strathclyde Review ended up — as a result of the terms of reference set for it by the Government — asking the “wrong questions” and framing the issues inappropriately. In particular, the Committee takes the view that while the Strathclyde Review approaches the matter in terms of the relationship between the two Houses of Parliament, the underlying, and far more profound, issue concerns the relationship between Parliament and the Executive:

Delegated legislation is the product of a delegation of power from Parliament to the Government. Parliamentary scrutiny of secondary legislation is the mechanism by which Parliament assures itself that the Government is exercising that delegated authority in an appropriate way, and in a manner which accords with Parliament’s intentions. Yet Parliamentary scrutiny of delegated legislation is less intensive and arguably less effective than its scrutiny of primary legislation. Statutory instruments cannot be amended, so there is little scope or incentive for compromise. Far less time is spent debating delegated legislation than is spent debating primary legislation. And … it is established practice that the House of Lords does not vote down delegated legislation except in exceptional circumstances. The result is that the Government can pass legislative proposals with greater ease and with less scrutiny if it can do so as delegated, rather than primary, legislation. It is in this context that proposals to weaken the powers of the House of Lords should be considered.

The Constitution Committee continues:

We recognise the primacy of the House of Commons. But it is essential that any proposals to change the means by which delegated legislation is agreed by Parliament must be evaluated not only in terms of their effect on the balance of power between the two Houses, but between the Executive and Parliament as a whole. The Government stated that the Review’s remit was “to examine how to protect the ability of elected governments to secure their business in Parliament”, and Lord Strathclyde stated in his foreword that he tried to balance parliamentary scrutiny against “the certainty that government business can be conducted in a reasonable manner and time”. We consider that the starting point for reviewing how Parliament scrutinises the Executive should not be how the Executive can secure its business. The focus should be on how to ensure that the actions of the Executive are scrutinised effectively and that parliamentary approval of delegated legislation—by members of both Houses of Parliament—is not a mere box-ticking exercise.

The Committee is critical of the general idea of weakening of the Lords’ powers over delegated legislation for a number of reasons, not least because it is very broadly accepted that secondary legislation receives far greater scrutiny in the Lords than in the Commons. Indeed, the Constitution Unit has said that because of the “inadequate nature of Commons scrutiny, any reform that curtails the role of the House of Lords in relation to delegated legislation risks turning an already deeply flawed process into a farce”. Against this background, the Constitution Committee raised the following more particular concers:

• Reducing scrutiny of delegated legislation might “encourage the Government to draft delegated powers [conferred by primary legislation] as broadly as possible, so that secondary legislation could [then] be used to pass measures which might otherwise face greater opposition in the Lords as primary legislation”.
• There is a “significant risk” that denying the Lords any “real power” in relation to statutory instruments would diminish its scrutiny function and cause its views to be taken less seriously during the drafting process.
• Secondary legislation does not necessarily warrant less rigorous scrutiny than primary legislation, particularly given the tendency of Government to insert into Bills very broad regulation-making powers.
• Reducing the Lords’ powers in respect of secondary legislation might cause it to be “more assertive” in relation to primary legislation; an “unintended consequence” might therefore be “to change the site of possible confrontation between the two Houses”.

The Committee is also critical of the three specific options considered in the Strathclyde Review. It considers first option — removal of the House of Lords from the statutory instrument procedure altogether — to be “clearly unacceptable” because it would “significantly curtail the capacity and responsibility of Parliament to oversee the Executive”.The second option considered in the Strathclyde Review is for the Lords to pass a resolution or new Standing Orders concerning the use of its powers in relation to statutory instruments and (as the Review put it) to “revert to a position where the veto is left unused”. The Review rejects this option, arguing that it would be unworkable in the light of existing disagreement about the conventional position. The Constitution Committee rejects the Review’s conclusion on this point for two reasons.The Committees note that “[t]he fact that there is presently disagreement about when the House’s veto can properly be deployed does not mean that an agreement could not be reached”. Indeed, as the Committee points out, others — including the Royal Commission on Reform of the House of Lords, the Joint Committee on Conventions and the Leader’s Group chaired by Lord Goodlad — “were all able to reach conclusions on what the ‘conventions’ were or should be”.More fundamentally, the Committee observes that while the Review implicitly assumes that “only a rigid, cut-and-dried rule would be sufficient because leaving scope for flexibility or the exercise of judgement on the part of the House of Lords would be undesirable”, the Review simultaneously says that the Lords should trust the Government to ensure that, in the future, Bills contain “an appropriate level of detail” so as to guard against constitutionally improper reliance upon secondary legislation. The Committee argues that the Government cannot have it both ways, and that the Review’s position on this point “sits in tension with the fact that elements of the relationship between the two Houses have long been governed effectively by convention and established practice”.The third option — and the one recommended by the Strathclyde Review — entails enacting primary legislation to enable the Commons to override the Lords on statutory instruments. The Review suggests that this would bring the Lords’ powers in respect of secondary legislation into line with their powers in relation to primary legislation. However, as the Committee notes:

there is an important difference between the Lords’ present powers in respect of primary legislation under the Parliament Acts and the Lords’ proposed powers in respect of statutory instruments. Whereas the Parliament Acts enable the Lords to hold up primary legislation for one year, the Strathclyde Review proposes no fixed period of delay in relation to statutory instruments rejected by the Lords. An objection registered by the Lords to a statutory instrument would therefore be subject to the possibility of rapid override by the Commons.

The Strathclyde Review rejects the possibility of a fixed period of delay. However, the Committee dismisses as unfounded the Review’s technical objections to introducing such a delay, and argues that whether such an approach would be right in principle depends on how the role of the House of Lords is and should be understood in relation to statutory instruments:

If the aim, as the Review argues, is to make the Commons debate (and the Government consider) a statutory instrument once again in the light of the Lords’ concerns, then that might be achieved by requiring the Government to make time for a substantive debate in the Commons—although a delay would be needed for the Commons properly to consider the substance of debate in the Lords and to allow time for the various reactions of the public and civil society to be heard. If, however, the aim is to give the Lords leverage, such that the Government would be more likely to re-lay the statutory instrument in a form that met at least some of the Lords’ concerns, then a power to delay for a fixed period would be necessary.

The Committee goes on to note that the Review “takes it for granted that the absence of a delaying power would not reduce the likelihood of ‘proper consideration [by the Commons] of the Lords’ decision, and a serious reconsideration of the instrument’”. This, points out the Committee, “boils down to trusting that the Government and the House of Commons would take seriously the Lords’ objection and give due reconsideration to the instrument in question in the light of the Lords’ concerns”, the implication being

that the Government and the House of Commons should be trusted to exercise good judgement and appropriate restraint in relation to matters of this nature. It is striking, however, that the Review, by rejecting option 2 out of hand, is not prepared to rely upon the exercise of such judgement and restraint by the House of Lords.

The Committee concludes that the Strathclyde Review does not provide a “sufficient basis for changing how Parliament holds the Executive to account”; that “both Houses of Parliament … need to play an active role in considering how powers should be delegated appropriately in primary legislation, how those powers should be exercised by Government and the way in which both Houses scrutinise and approve delegated legislation”; and that “[t]he use and scrutiny of delegated legislation is at the heart of the delicate balance of power between Parliament and the Executive”. It cautions that “[c]hange must be the result of careful and thorough consideration, and not undertaken in haste or for the wrong reasons”.

The report of the Delegated Powers and Regulatory Reform Committee

The Delegated Powers and Regulatory Reform Committee, in its report, is also critical — not only of the Strathclyde Review but also of the Government’s approach to secondary legislation more generally. In particular, it expresses concerns about the use of “skeleton Bills” that are “principally made up of delegations of powers, leaving most of the legislative content to be set out in delegated legislation made under the bill once it has become an Act of Parliament” and about the “prevalence” of “Henry VIII” powers that authorize executive amendment or repeal of primary legislation. More generally, the Delegated Powers Committee, like the Constitution Committee, argues in relation to the Strathclyde Review that “the relationship at issue” is not the relationship between the two Houses, but “between the Government and Parliament”:

The House of Lords’ votes on the Tax Credits Regulations challenged the Government, not the House of Commons, and the effect of the options set out in the Strathclyde Review would be to tilt the balance of power away from Parliament generally and towards Government.

Concluding remarks

The defining characteristic of the British constitution is not its unwritten nature; rather, it is the related and immense flexibility that flows from an absence of entrenched constitutional rules. Thanks to the latter characteristic, it is possible for major constitutional changes to be implemented simply by Parliament’s enacting ordinary legislation. Indeed, it is legally possible for such changes to be enacted by the House of Commons alone, given its capacity, under the Parliament Acts 1911–49, to legislate in the absence of the Lords’ support. As a result, the sort of legislation recommended by the Strathclyde Review, enabling the Commons immediately to override the Lords’ objections to secondary legislation, could, as a matter of constitutional law, be straightforwardly imposed by the House of Commons at the behest of the Government through the unilateral enactment of primary legislation under the Parliament Acts. And that is so notwithstanding the fact that, as the Constitution and Delegated Powers Committees point out, such legislation would effect a significant shift in the balance of constitutional authority not (only) between the Commons and the Lords, but also (and particularly) between Parliament and the Government. The Select Committees that have reported today have called very clearly for the pause — if not the stop — button to be pressed, and for the adoption of the sort of consensual, reflective approach that is imperative if constitutional reform is to be appropriately considered and, if necessary, implemented. It is to be hoped that those calls will be heeded.

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