My Lords, I enter this debate from a somewhat different angle in that I am only here—that is, here in this Chamber—because of statutory
instruments. The reason Plaid Cymru changed its policy in 2007 and decided to accept an invitation to put forward three names for this House was specifically related to the provisions of the Government of Wales Act 2006, which were then coming into force. That Act allowed the National Assembly for Wales to legislate on devolved matters, but only if orders were passed by both Houses of Parliament in each specific instance in which the Welsh Government wished to legislate. In practice, that meant that the unelected House of Lords could block the wishes of the elected Government of Wales. If the wishes of Wales could be frustrated in such a manner, we felt that we should avail ourselves of the three places on offer and make the case for Wales in this Chamber. We were warned, incidentally, by our friends in the SNP not to believe promises made to us, and I am afraid that events rather proved the SNP right.
It was not until January 2011 that I took my place in this Chamber. Within two months, there was a referendum in Wales through which primary legislative powers were accorded to our National Assembly, and the need to get orders for that purpose through this Chamber ended. Sadly, the use of such orders to constrain the powers of the Assembly will arise again in the context of the forthcoming Government of Wales Bill—a proposal that is currently highly controversial in Wales.
In my five years here I have had opportunities to debate numerous orders. One thinks of the pneumoconiosis orders, for example, so relevant to industrial dust sufferers in Wales and elsewhere. Statutory instruments are an essential part of the legislative process. To the extent that this Chamber has a legitimate role in the process of formulating and amending legislation, that process must include secondary legislation as much as primary legislation.
In the context of the Strathclyde review—I congratulate the noble Lord, Lord Strathclyde, on his brevity and focus—a number of detailed issues need clarification, and previous speakers have alluded to some of them. The noble and learned Lord, Lord Judge, in his excellent speech highlighted Henry VIII powers. Incidentally, as the noble Lord, Lord Williams of Elvel, mentioned a moment ago, those powers are today being used in a draconian manner. Clause 42 of the Immigration Bill gives Westminster Ministers powers by regulation to amend, repeal or revoke any enactment of the National Assembly for Wales or the Scottish Parliament in the context of the children’s measure in which that provision is located.
There is one detailed implication that I should like to highlight tonight, which is the acceptability of legislation that has been passed over the years on the basis of details being fleshed out by statutory instruments or updated by such a process, with the underlying assumption that those instruments will be adequately scrutinised. If there had been any question at the time of the passing of the original Acts that the orders would not be scrutinised, or might be subject to a much weaker form of scrutiny, those primary Acts might not have been passed, or at least not in their eventual form. MPs and Peers might have insisted on greater detail in the Bills. That begs a far-reaching question: does changing the way we deal with orders
trigger a question as to whether the original Acts, under which those orders are made, lose some of their legitimacy?
I first entered the House of Commons in 1974, when there were some 2,000 statutory instruments each year. Since that time there has been an ever-increasing dependence on statutory instruments to fill in the detail that has been omitted from primary legislation, so that, in 2001, when I left the Commons, there were more than 4,000 statutory instruments. This is unsatisfactory for two reasons. First, orders cannot be amended and so the two Chambers are left with draconian choices of voting them down or approving what they know to be deficient. Secondly, the House of Commons just does not seem to have the time, capacity, or interest in giving secondary legislation the scrutiny it needs.
If ever there is a justification for having a second, revising Chamber—and I believe that in the UK context there is such a need—then it is to do the detailed revising work that the first Chamber has been unable to undertake adequately. If that role is taken away from this Chamber, or our powers are eroded to the extent now being considered, this begs the question of the very purpose of this Chamber. Let us remember that, once the principle of restricting the powers of this Chamber to intervene in secondary legislation has been accepted, it is only a short step thereafter to curtail its powers to amend primary legislation—arguments about which will no doubt be made by Governments who want their programmes bulldozed on to the statute book.
That brings me to the nub of the argument as I see things. It is perfectly reasonable for people outside this Chamber to argue that an unelected House should have no right to amend primary legislation or to block secondary legislation. After all, in any democracy, it is the elected representatives of the people who should legislate on their behalf. It is my view that, until we have an elected second Chamber at Westminster, the role of this Chamber will always be limited and, to a large extent, unclear. We can argue the details of any electoral process necessary to give this Chamber legitimacy but, eventually, we will have to face that reality.
The noble Lord, Lord Foulkes of Cumnock, was absolutely right in saying that these matters, therefore, must be viewed in the overall context of the future of Parliament itself. It is my view that the Strathclyde proposals bring that day of a democratically elected second Chamber very much nearer. I believe that they will have two direct consequences, if they are implemented. First, far more legislative detail, currently consigned to statutory instruments, will have to appear in primary legislation with all that that means in terms of ensuring adequate scrutiny, as indeed the noble Lord, Lord Strathclyde, has himself recognised. Secondly, to legitimise that necessary scrutiny, the second Chamber—to give it an undisputed role in formulating legislation—will have to become a directly elected Chamber. The Strathclyde review has far-reaching consequences and, in going down that path, we should do so with our eyes open and a willingness to embrace those consequences.
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