My Lords, with the leave of the House, I would like to make a Statement on the review of my noble friend Lord Strathclyde on secondary legislation and the primacy of the House of Commons.
On behalf of my right honourable friend the Prime Minister, who commissioned the review, I pay tribute to the noble Lord, Lord Strathclyde, and to the expert panel who assisted him. Before coming on to the review itself, it is perhaps worth rehearsing briefly the circumstances in which it was commissioned.
We have a clear purpose in this House as a revising Chamber, and in so doing, we complement the work of the other place. When we consider primary legislation, the conversation between the two Houses is clear. We can ask the House of Commons to think again through the process of ping-pong, but ultimately the will of the elected House can prevail, with the Parliament Acts available as a backstop.
Secondary legislation works differently. This House can only give or withhold its approval and there is no dialogue. If your Lordships’ House refuses to give its consent, the whole process grinds to a halt. It means that, unlike on primary legislation, we are able to exercise a veto, a very significant power, and so by convention we have exercised that power only in exceptional circumstances, doing so on only five occasions since the Second World War.
So withholding agreement to a statutory instrument is rare enough. To take that step on a Budget measure, as we did in October, was unprecedented, and to do that on a Motion where different sides of the House still disagreed as to its effect took us into uncharted territory. Yet only a day after the House exercised its veto, it was invited to do so all over again in respect of an order made under the Electoral Registration and
Administration Act 2013. What had happened previously on two occasions in 13 years very nearly happened twice in two days. The exceptional was becoming a little less rare.
These events put a long-established convention in doubt and raise constitutional questions about the primacy of the elected House which needed to be examined. My noble friend was asked to examine whether there is a better way to handle secondary legislation in order that the elected House of Commons could have the decisive say, just as it does on primary legislation. My noble friend did that in his customary way, with careful thought and extensive consultation with parliamentarians in both Houses from across the political spectrum. The result is a considered report with three aims in mind: to provide clarity, simplicity and certainty in the passage of secondary legislation.
My noble friend outlines three options as to how the other place can be given the decisive say. Option 1 would remove the House of Lords from the statutory instrument procedure altogether, as already happens in respect of some categories of SIs. Option 2 would retain the present role of this House in relation to secondary legislation, but seek to codify the convention that has been put in doubt by clarifying the restrictions on how the House’s powers to withhold approval or to annul should be exercised, whether by resolution or changes to our Standing Orders. The third option would create a new procedure in statute. It is a compromise option that in exchange for removing the power of veto would give this House a new power to ask the House of Commons to think again. But the other place would have the final say, allowing it to insist on its primacy and override a rejection by the House of Lords.
My noble friend Lord Strathclyde, in submitting his review to the Prime Minister, has clearly recommended the third compromise solution as the way forward. I should add that he has recommended that the Government, with the involvement of the House of Commons Procedure Committee, should review the circumstances in which statutory instrument powers should be subject to already existing Commons-only procedures, and he recommends that the Government should ensure that both primary and secondary legislation are used appropriately.
My noble friend’s report is thoughtful and measured, and deserves proper consideration by the Government before we respond fully. That is what we intend to do. Of course, noble Lords will have views as to the best way forward. We want to listen properly to those views, and to those of Members of the other place, as we decide on our preferred approach. That begins today with this Statement and it will continue with a full debate on my noble friend’s report in the new year before the Government respond in full.
As we consider the way forward, it is important that we do so with those aims of clarity, simplicity and certainty in mind. All Governments require and indeed benefit from a strong Parliament holding them to account and providing scrutiny and, as my noble friend’s report highlights, the House of Lords has long played its scrutiny role very effectively. But in providing that scrutiny and challenge, it should be the elected
House that has the decisive say on secondary as well as on primary legislation. It is by ensuring that balance that we can complement the other place and best serve the core purpose for which we are here.
I commend the Statement to the House.
11.50 am