My Lords, the noble Lord, Lord Strathclyde, was asked to review in haste. He did so and he produced a review that is an enormously valuable starting point for a more comprehensive approach to how we improve the scrutiny of secondary legislation not only by this House but by the other place as well. When he introduced this debate, the noble Lord said that it took us to the heart of what we are here for as parliamentarians. I agree with that. We have a responsibility to look very carefully at the proposals before us and to approach them, I hope, in a way that looks forward rather than backwards. But it is impossible completely to disregard the circumstances that gave rise to the review and to allow a mythology to grow up that this House had overstretched itself and had broken with convention.
I find it extraordinary that when everyone agrees that the convention is that only in the most exceptional circumstances should the House vote down an SI, the Government bring into the argument the fact that this was an exceptional SI. It was to do with a major plank of government policy. It had huge financial implications. They defeat their own argument by arguing its exceptionality. What I think was exceptional was that the House found a constructive way forward on this occasion, which was not to kill stone dead.
When there was a murmur of disagreement as the noble Lord, Lord Strathclyde, said that we had killed off the tax credits legislation, he said that it illustrated that there was not clarity about the convention. It did not illustrate that at all. People were arguing with whether the vote in this House killed off the tax credits legislation. It did not. The SI had still been through the House of Commons. It could have been brought back to this House in exactly the same form. It could have been incorporated in a short, sharp Bill
that was a finance Bill that never came to this House. None of those things happened. What happened was that the Government thought again. They thought that there was some sense in what was being said here and changed their policies. That was a good example of what this House is for.
We have to look at the proposals in the report of the noble Lord, Lord Strathclyde, and, building on the work that has been done by the noble Lord, Lord Wakeham, and others, we have to ask ourselves whether there is a way of effectively asking the House of Commons to think again. Effectively asking it to think again is not as easy as simply having a delay Motion. It will not think again at all on a large proportion of statutory instruments that have not been thought about at all in the House of Commons—those that come here first. It will not think again effectively if that means that the Government can bring forward a vote on a deferred Division within 48 hours of it coming back from this House with no debate.
If the House is to be asked to give up a very precious, very rarely used freedom to kill off an SI, it should not sell that freedom for a mess of pottage. It should do so only when it is absolutely convinced that the scrutiny that Parliament as a whole would thereafter be able to give to statutory instruments would be improved dramatically. That is the test to which I would put these proposals.
I worry about legislation. It will not do what the Government want it to do unless it is retrospective, and I do not like retrospective legislation. It will not do what the Government want it to do if we do not recognise that the reason, in the words of the noble Lord, Lord Strathclyde, that the convention had become “frayed” was because, over the years, use of statutory instruments, culminating with the tax credits regulations, has gone way beyond their original purpose.
4.46 pm