Baroness Anderson of Stoke-on-Trent (Lab)

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My Lords, I thank the noble Lord, Lord Thomas of Gresford, for raising the important issue of how we legislate and how we should legislate. It is the constitutional duty of this House to ensure that legislation that the Government bring forward is of the highest standard. I know that this duty is taken seriously by all Members of your Lordships’ House. The Government consider Parliament’s role in the legislative process to be of the utmost importance and hold the contribution of this House in the highest regard, taking seriously the comments and concerns raised by noble Lords, especially today. Your Lordships’ House’s ability to scrutinise is second to none, even if that does make it slightly terrifying for a new Minister.

I acknowledge the work over recent years of the Delegated Powers and Regulatory Reform Committee, the Joint Committee on Statutory Instruments, the Secondary Legislation Scrutiny Committee and the Constitution Committee. Their tireless work to support and scrutinise the creation and use of delegated powers, and the legislative process more broadly, helps to shape policy and uphold the high standards that Parliament and the public expect. Their diligent scrutiny and focus are an example of your Lordships’ House at its best.

I turn to the substance of the Bill. The issue of statutory instruments and, more broadly, the nature and scope of powers conferred to the Executive is not new. There has always been a need to strike a balance between providing the Government with the flexibility they need to deliver for the country and ensuring that the legislature can retain proper control over changes to the law. This debate is as old as Parliament and has been a running sore—perhaps most notably with the powers conferred by the Proclamation by the Crown Act 1539, which granted King Henry VIII sweeping powers to legislate by decree, without any semblance of parliamentary oversight as we would recognise it today. We can be thankful that the Act was repealed shortly after his death. That being said, the interesting debate today is evidence of the persistent and lively nature of the subject of delegated powers and the importance that Parliament gives to the legislative process.

Procedures for delegated powers have come a long way since Henry VIII—although it does not always feel like it—but that is not to say that the situation is perfect. This Government are clear that, too often, Parliament has been asked to approve overly broad and insufficiently constrained powers, and not been given the information it needs to fully scrutinise legislation. That is why this Government have pledged to do better—to respect Parliament’s role and to enable proper legislative scrutiny. To that end, I have a great deal of sympathy with the proposals before us. However, I do not believe that they are the right way to address the problems we see.

It is important to remember that Parliament already has the opportunity to scrutinise the nature and scope of powers during the passage of enabling primary legislation, as well as the content of statutory instruments when they are laid before Parliament. Parliament routinely requires that statutory instruments are subject to parliamentary scrutiny through either the negative or affirmative procedures. Under either procedure, once an instrument is laid before Parliament, Members of both Houses may scrutinise and debate its purpose and form, and even move to prevent it becoming or remaining law. Scrutiny of statutory instruments and delegated powers begins before a Bill even reaches Parliament. A high bar has been set to ensure that any delegated powers are justified. The Government have been clear that any delegated powers must possess a robust rationale, must be legally sound, and should not be taken in lieu of underdeveloped policy.

Indeed, my noble and learned friend the Attorney-General spoke passionately about the rule of law in his maiden speech, when he promised to guard against the abuse of the proper role of secondary legislation. The noble Lord, Lord Thomas of Gresford, quoted the Attorney-General’s 2024 Bingham Lecture, titled “The Rule of Law in an Age of Populism”—I think he will be delighted at how many noble Lords have followed his speech on Monday. My noble and learned friend spoke about the proper balance between Parliament and the Executive, saying that:

“Secondary legislation has an indispensable role to play in a modern, regulated society”,


but that there is a need for a

“sharper focus on whether taking delegated powers is justified in a given case, and more careful consideration of appropriate safeguards”.

I strongly believe that this is the right approach. This emphasis on adherence to good legislative practice ensures that primary legislation is specific and measured in the powers it grants, and that Parliament has ample opportunity to scrutinise any provisions for statutory instruments.

However, as the noble Baroness, Lady Neville-Rolfe, highlighted, the Government have specific concerns with the procedural processes set out in the Bill. They would require that a greater proportion of parliamentary time is spent on secondary legislation. Most draft SIs would be subject to the affirmative procedure, under which both Houses must debate and approve instruments before they become law. Subjecting these instruments to the possibility of further debate would, in effect, create yet another forum for relitigating debates that took place during the passage of the primary legislation.

Furthermore, the proposed procedure is asymmetric between the Houses. It would allow the other place to require the Government to withdraw and reconsider an instrument only on the initiative of this House. This would sit in tension with the fundamental principle of the primacy of the elected Chamber, and it is not for this House to tell the other how to operate. I think we can acknowledge that we would not welcome such an approach either from the other place, if they tried it. As such, the Bill in question would represent a significant step and fundamentally alter the way that government business is arranged, particularly in the Commons.

It is often statutory instruments on which the Government rely to respond to dynamic and emerging national and international issues; this is not something we would wish to restrict. I am sure we can all understand the negative effect that the Bill would have on this process, introducing the possibility of multiple, potentially drawn-out debates and votes on statutory instruments that would truly hinder the Government’s ability to respond to ever-changing national and international opportunities and challenges and take up precious parliamentary time. It is the opinion of the Government that our efforts should instead be directed at ensuring that we get the regulations right in the first place—that is to say, that they are drafted to the highest standard and Parliament is provided with the necessary information to hold the Government to account.

We are working hard to achieve this. The Explanatory Memorandum template has been revised to ensure that they are clear and meet the needs of Parliament and the public. We will review the template and guidance, which was published for the first time earlier this year, in the new year to ensure that it remains fit for purpose. We are also developing and delivering a range of training initiatives, including e-learning focusing on the project management aspect of secondary legislation, which will be available to all civil servants. This is complemented by a biannual programme of high-level seminars covering the delivery of secondary legislation, alongside an ongoing programme of workshops on the fundamentals of secondary legislation and how to draft effective Explanatory Memoranda. The team that develops these resources works closely with the SLSC secretariat. Ministerial training is now being delivered on a regular basis to ensure that Ministers have a clear understanding of the key issues, and understand the process around statutory instruments and broader delegated powers.

The noble and learned Lord, Lord Thomas of Cwmgiedd, asked about impact assessments. We agree that legislation should arrive in Parliament with all the necessary supporting documents to ensure that we in this place and those in the other place are best positioned to conduct appropriate scrutiny. We will do everything that we can to ensure that all impacts assessments are delivered when required.

Before I conclude, I thank the noble Lord, Lord Hunt of Wirral, for his contribution. I know that he has spoken in this debate in a personal capacity. However, I am grateful for all his work as chair of the Secondary Legislation Scrutiny Committee, and that of his committee—especially when I was in opposition and used much of it in debates on SIs in the Moses Room, and especially recommendations that it has made about the importance of seeing improvements to the Government’s approach to secondary legislation. I hope that he will be reassured by my response to the debate. I assure him that the Government have heard his arguments today, and as chair of his committee, and we look forward to continuing to work with him.

As the now shadow Leader so succinctly put it, in a previous debate before the House:

“It is the Government’s constitutional role, and indeed their right, to put before your Lordships … legislation they judge to be expedient to deliver on their manifesto commitments and to address the issues of the day. It is Parliament’s role to ensure that this legislation is effective, necessary and balanced”.—[Official Report, 6/1/2022; col. 793.]


Statutory instruments are often the appropriate device for such events. The Government have confidence that the existing processes are robust and fit for purpose. They necessarily provide the Government with the means to respond effectively to developing circumstances while upholding the constitutional duty of Parliament to scrutinise the laws that this Government bring forward. However, it is important to recognise that there will be times when the Government will not get this right. This process is not static.

This debate has been welcomed and heard by the Government, but I remind your Lordships that we are 106 days in. It may take us some time to get this right. If this debate has shown one thing, it is the noble intent of Members of this House to uphold the highest standards of scrutiny and legislative procedure. I commend everyone for that.

Baroness in Waiting/Government Whip (Baroness Twycross) (Lab)

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My Lords, I thank noble Lords for their contributions today and the noble Lord, Lord Thomas of Gresford, for his continued work championing the important issue of secondary legislation.

As we all know, this House plays a vital role in ensuring that all legislation brought forward by this Government is of the highest standard. I am grateful for the role played by committees of this House, including the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee, in ensuring that statutory instruments are subject to appropriate scrutiny. Our current procedures and processes for statutory instruments allow for both Houses to scrutinise and debate instruments.

Turning to the first group of amendments, which address the scrutiny of instruments in this place, I believe that these amendments are well intended, and I recognise that they represent a check on the power of this place and assert its right to scrutinise instruments laid before it. However, the Government’s view remains that we should continue to get this right in the first instance. That is why, as my noble friend Lady Anderson set out at Second Reading, we must focus our efforts on ensuring that statutory instruments are delivered to the highest quality in the first place.

That is not to say that the situation is perfect. This Government are aware that Parliament has not always been given the information it needs to fully scrutinise legislation, and the Secondary Legislation Scrutiny Committee has sometimes asked for further detail. This has on occasion led to some Explanatory Memoranda being replaced to include that information. But I remind the House, and, I hope, reassure the noble Lord, Lord Hunt of Wirral, and the noble and learned Lord, Lord Thomas of Cwmgiedd, that this Government have pledged, and intend, to do better. This does not mean, however, that we need to revise the procedures for the consideration of statutory instruments.

In a similar vein, while I thank the noble Baroness, Lady Finn, for her amendment which seeks to ensure that this House does not have greater powers to amend statutory instruments than the other place, I maintain that the Government’s position is that the legislation before us is not the way to remedy our processes regarding such instruments. I am, none the less, grateful to her for drawing attention to the importance of maintaining a balance between the powers of our Houses.

Additional training, resources and guidance have been and continue to be developed and revised as appropriate to support our ongoing efforts to do better. This includes training and resources for Ministers and civil servants, and last month the Guide to Making Legislation was updated. This update includes a new delegated powers toolkit which has been produced by my noble and learned friend the Attorney-General and which will support departments to decide whether to include a delegated power in a Bill. Our hope is that this will support the subsequent development of quality instruments and supporting documentation.

The final group concerns the technical correction of statutory instruments. It would be remiss of me at this point not to draw the Committee’s attention to the excellent work carried out by the National Archives, which oversees the so-called correction slip process. This is a well-established process through which the Government can already make minor, non-substantive corrections to defective statutory instruments after their publication. The National Archives does an excellent job in assessing whether a corrections slip is appropriate on a case-by-case basis and, where applicable, issues the slip to the Vote Office in the Commons and the Printed Paper Office in the Lords.

Baroness Twycross (Lab)

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My apologies.

Baroness Twycross (Lab)

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I am not going to go over all the points I already made in anticipation of the noble Baroness’s introduction of group 2. As I made clear, additional training, resources and guidance have been, and continue to be, developed and revised as appropriate to support our genuine, ongoing effort to do better. We hope that this will support the subsequent development of good-quality instruments and supporting documentation.

Baroness Twycross (Lab)

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My Lords, I have already covered some of my points in this final group. This Government support the current correction slips process. While it should never be needed, it is helpful where minor and technical corrections are required; it is a well-established process and it is used rarely and infrequently. Correction slips, as I started to say previously, are published on legislation.gov.uk, which ensures the transparency of these technical corrections. It is obviously desirable that corrections are never needed, but in our view, we need to be pragmatic in this respect. We should therefore acknowledge that this is a part of a system that works very well, with only 69 correction slips being used in the previous Session of Parliament to make non-substantive amendments to instruments containing minor typographical errors.

Appreciating the concerns raised by the noble and learned Lord, Lord Thomas of Cwmgiedd, and in response to the noble Lord, Lord Hunt of Wirral, I again give reassurance that this Government genuinely remain committed to improving the delivery of statutory instruments. Noble Lords will be able to judge us on our success over the course of this Parliament. I thank noble Lords for the opportunity to have this debate and for the time given to discuss what we agree is a very important issue.

Baroness in Waiting/Government Whip (Baroness Anderson of Stoke-on-Trent) (Lab)

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My Lords, I thank the noble Lord, Lord Thomas of Gresford, for bringing forward this Bill. It has been an excellent opportunity to highlight the importance of secondary legislation. This Government place great importance on Parliament having the information it needs to scrutinise. From the introduction of the delegated powers toolkit to an enhanced training offer for civil servants at all levels, the Government are taking steps to demonstrate how seriously they take secondary legislation.

I also thank the clerks and advisers of the Joint Committee on Statutory Instruments, as well as the Secondary Legislation Scrutiny Committee and the Delegated Powers and Regulatory Reform Committee, for their diligent work in scrutinising the secondary legislation the Government lay before Parliament. I remind the House that my husband is a member of the JCSI.

I take this opportunity to thank the National Archives for maintaining legislation.gov.uk, which is a valuable resource for all Members of your Lordships’ House, as well as the general public, and for its work in administering the correction slip process, which the Bill would place on a statutory footing. With the greatest respect to the noble Lord, Lord Thomas of Gresford, the Government disagree that this is a necessary service for the correction of insubstantial errors. We remain of the view that there has always been a need to strike the balance between providing the Government with the flexibility they need to deliver for the country and ensuring that the information they provide is clear and explains why legislation is necessary.

Baroness Anderson of Stoke-on-Trent (Lab)

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The noble Lord makes an excellent point. As the Attorney-General has made clear in several speeches, that is absolutely the intention and objective of this Government’s legislative programme.

I do not wish to repeat the reasons why the Government cannot support the Bill. We will continue our efforts to improve the secondary legislation that is laid before Parliament, including the documents that accompany it, but we do not agree that further legislation is the way. I am grateful to all noble Lords who have participated at all stages of this Private Member’s Bill and for the opportunity to discuss the importance of secondary legislation. As ever, your Lordships’ House’s ability to scrutinise is second to none.