The House of Lords should retain its ability to reject secondary legislation, contrary to the proposals of the Strathclyde Review, a committee of peers has concluded.
In a report published today, the Lords' Secondary Legislation Scrutiny Committee (SLSC) rejects all three options for change set out in the review, set up by David Cameron after peers stalled the Government's regulations that would have restricted working families' tax credits.
Option 1 would remove the House of Lords from any scrutiny of secondary legislation; option 2 would re-frame an earlier convention with the effect that the Lords’ ability to reject secondary legislation would be "left unused"; and option 3, recommended by Lord Strathclyde, would go further than option 1 by also removing the Lords’ power to ask the House of Commons to "think again".
After taking evidence from Lord Strathclyde and other witnesses, the committee recommends that the Lords should retain its power to reject secondary legislation, albeit only in exceptional circumstances. It sees strong arguments for reaffirming the current "convention".
"We make this recommendation on two principal grounds", the report states. These are:
- "first, that the House has demonstrated, not least by the fact that there have been only six defeats on secondary legislation since 1968, an understanding that the power should be exercised only rarely, and we take the view that, as a self-regulating House, the House can be relied upon to continue to do so; and
- secondly, that the nature of secondary legislation is such that the key issue is not, as the Strathclyde Review suggests, the “primacy of the Commons” but the role of Parliament in scrutinising and, where appropriate, challenging the executive. Given the Government majority in the Commons and also, as a result of the many pressures on the time of MPs, the greater scope of the Lords to devote time and effort to the scrutiny of secondary legislation, the Lords has a critical part to play in the effective scrutiny of secondary legislation by Parliament".
Committee chair Lord Trefgarne commented: "Several of our witnesses, including Lord Strathclyde himself, raised the issue of the boundary between primary and secondary legislation, and a concern that a lack of detail in Acts leaves too much to be implemented by statutory instruments.
"If primary legislation presented by Government is adequately fleshed out, subsequent secondary legislation will be subsidiary in the proper sense of the word, and unlikely to face serious parliamentary challenge.
"We think that the current ‘convention’ should be reaffirmed, in the knowledge that the House of Lords, as a self-regulating institution, can be expected to make a reasonable judgment of whether, and when, it should challenge a statutory instrument."
The report also recommends further work "by some appropriate form of collaborative group", to consider what procedural changes in both Houses could be introduced to make parliamentary scrutiny of delegated legislation more effective.