My Lords, those of your Lordships who have been Members of this House for a few years may remember that I was the Opposition Chief Whip for some years during Mr Blair’s Government. That Labour Government did not have a majority in this House and nor did we. Sometimes, when we had support from other parts of the House, we could and did use the Lords’ full powers, as has already been referred to on various occasions, but we did so sparingly. I am grateful for that word, which was suggested by the noble Lord, Lord McNally, as the correct way to refer to our use of those powers—and, for that matter, other parties’ use of them. That was of course because we respected the role of the elected House and recognised our unelected status here, but also because we did not wish to build up the case for the abolition of the House; in passing, I do not agree with the noble Lord, Lord Wigley, in what he just said, but he will not be surprised by that at all. Both those considerations are still entirely valid.
Rightly or wrongly, the whole issue of statutory instruments and their use—it goes far wider than my noble friend Lord Strathclyde’s report—has now been put on the table. That is as a result of the ingenuity of the noble Baronesses, Lady Hollis and Lady Meacher. My noble friend’s report is the best course immediately in dealing with the situation that has arisen. I am in favour of option 3, but it needs a little further thought before we implement it. Of course it is right that this House should not be in a position to entirely overrule the elected Chamber. At the same time, we should place secondary legislation on a basis more nearly the same as that of primary legislation. If my noble friend’s proposal has logic, it implies—it does not actually say it—that affirmative instruments should always be debated first by the House of Commons and secondarily by this House. That is usually but not always the case, and it would need to be.
Another aspect has drawn a lot of attention in this debate: when there is to be a second Commons consideration, it should always include an opportunity for debate. That is easy to say, but we should recognise that it involves alterations to the Standing Orders of the House of Commons and is not within our gift. However, it should be part of what you might call the deal. The opportunity for debate is more important, and actually a better approach, than the idea of a particular time lapsing after a defeat in this Chamber.
As I said, this debate has gone a lot wider than just the immediate considerations that my noble friend dealt with. The table in appendix C of his report suggests that the number of statutory instruments has remained broadly static since 1997, but a longer view shows that they have considerably increased in both number and importance over the years—certainly in the time that I have been in one or other House. Particularly after the speeches of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Williams of Elvel, I subscribe to the view that the number of statutory instruments has increased, is increasing and ought to be diminished. I am also a supporter of the Hansard Society’s call in its note on the Strathclyde
proposals that there should be a new and wider review on the preparation of legislation, on the lines of the excellent 1975 report by my late friend Lord Renton. It is regrettable that David Renton’s report was only partially implemented at that time, and of course it went a lot wider than this issue. It called for an overall look at the process of drafting legislation in the first place, and therefore what goes into a statutory instrument, for example, and the way in which legislation is debated once it gets into the two Houses of Parliament.
I also support the suggestion in my noble friend Lord Strathclyde’s report that further thought needs to be given to the precise definition and effect of Commons financial privilege. We are all aware of the general idea, and of some of the ways in which it impinges on primary legislation, but it needs further thought as to how it should work in respect of secondary legislation.
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