Strengthened Statutory Procedures for the Scrutiny of Delegated Legislation: DPRRC Report

Tuesday 5th March 2013 Lords Chamber

Motion to Take Note

20:08

Moved by

[Baroness Thomas of Winchester]

That this House takes note of the Report of the Delegated Powers and Regulatory Reform Committee on Strengthened Statutory Procedures for the Scrutiny of Delegated Legislation (3rd Report, HL Paper 19).

[Baroness Thomas of Winchester]

My Lords, first, I want to put on the record my thanks for and admiration of the work of the Delegated Powers and Regulatory Reform Committee secretariat in carrying out the research which enabled my committee to produce the report that we are about to debate. I thank in particular Kate Lawrence, our clerk until the end of last year who is now on a two-year sabbatical, and Peter Milledge, our invaluable counsel. I hope that the House will be as impressed as I am by the magnificent Table 1 on page 8 which sets out clearly the variations in strengthened scrutiny procedures that are at the heart of our report. I shall come back to those variations in a moment.

As a committee, we have been increasingly concerned in the past few years at the proliferation of procedures in legislation designed to give Parliament more control over delegated powers. This may sound counterintuitive: surely it is nothing but a good thing for Parliament to have an increased role in scrutinising all powers proposed by the Executive, particularly in the field of secondary legislation, which has always been the Cinderella in the legislative landscape, if I may mix my metaphors a bit. We agreed that enhanced and rigorous scrutiny is a good thing but needed to say to the Government, “Please don’t invent yet another variation on a strengthened statutory procedure without examining existing procedures first, otherwise the complexity you are in danger of creating may lead to confusion and muddle rather than enhanced scrutiny”. We even suggested that the House might consider the case for rationalisation of all these variations by legislation.

Then there is consistency of language. In seven of the scrutiny procedures, the Government have a legal duty to “take account of”, “have regard to” and “consider” a relevant committee’s recommendations. We wondered whether there are subtle differences in these expressions.

Before going any further, perhaps I should put our report in context by quickly sketching out how our committee came into existence, what has led to these new procedures and what they are. The Delegated Powers Committee was set up only in 1992—very recently by House of Lords standards—because of real disquiet over the way successive Governments were increasingly using order-making powers in Bills, some of which were little more than skeletal. This practice enabled Ministers to be vague about the all-important detail and future secondary legislation as the Bill made its way through Parliament. In justifying this lack of detail, Ministers could always cite flexibility for changing circumstances and, of course, precedent, but the House made it clear that leaving so much important detail to unamendable instruments was no longer acceptable. In many cases the detailed policy had simply not been worked out. The upshot was the Jellicoe report, which recommended the setting up of the Delegated Powers Committee to examine whether the delegation of legislative power in new Bills was appropriate. Eleven years later, the Merits of Statutory Instruments Committee was also set up to look at existing statutory instruments. Both committees have different names now to reflect their additional duties. They have certainly given a higher profile to delegated legislation and have, I believe, over the course of their existence, proved their worth. Governments have always taken the DPRR Committee’s reports seriously, very often acquiescing in its recommendations as Bills go through the House.

It may be worth noting that the other place does not have committees carrying out the same function; indeed, my committee is often asked to comment on draft Bills before a Joint Committee of both Houses. However, the other place does set up a scrutiny committee, under the super-affirmative procedure, if necessary, which issues a report, as does my committee. This might therefore be the right place to question whether having this duplication really makes sense. I gather it is fiendishly difficult to set up Joint Committees for both Houses but should this process not be made easier, and certainly speedier for this purpose, if not for any other?

Our report starts by setting out the different types of statutory instrument before concentrating on those orders which attract some kind of enhanced scrutiny procedure. These orders are all Henry VIII powers, which enable Ministers to amend Acts of Parliament by secondary legislation. Who would have thought that Henry VIII’s name would still be immortalised in quite this way? My late colleague Lord Russell said that the very first time King Henry used this power was to vary the price of wine. Although many Henry VIII powers are limited, there are many others which are much more significant. Nearly all Henry VIII powers are exercised by ordinary, familiar affirmative instruments, which have to come before the House before they can be made. However, there are now order-making powers in certain Bills which are subject to the super-affirmative or enhanced affirmative procedure, by which these orders receive much more detailed scrutiny, with many variations, than an ordinary affirmative order. Our report details all the order-making powers in Acts which attract a strengthened scrutiny procedure, and exactly what that procedure is in each case. Perhaps the best example is the Legislative and Regulatory Reform Act 2006, once dubbed the “Abolition of Parliament Bill”, because of the scope and significance of its delegated powers. This Act ticks all the requirement boxes in Table 1. All this may seem quite an undertaking but these safeguards were the price that the then Government had to pay for enabling a Minister to reduce or remove a burden imposed by primary legislation.

At the beginning of my remarks, I said that our report asked the Government not to invent a new variation on a strengthened statutory procedure without examining existing procedures first. The second major point we needed to make to the Government was, “Please make it clear whether legislative reform orders are to be used even if the proposed changes are highly controversial and if proceeding with them is not recommended by the relevant scrutiny committee in one or both Houses”. Just to be clear, the previous Government said that they would not proceed with proposed changes under these circumstances.

Since our report was published, the Government have responded to several of our questions but only to one of those two main points. We now know which committees are to scrutinise which orders. We also know that the Government will use the existing model, if possible, when proposing a strengthened scrutiny procedure in future; if not, they will explain the reasons for inventing a new procedure. They have also undertaken to lay supporting documents setting out the detail of and rationale for any proposed order under Section 19 of the Localism Act 2011.

Several of our concerns have been addressed but we still do not know whether LROs will be used for highly controversial changes and whether the Government will respect the relevant scrutiny committee’s power of veto. Before further legislation is drawn up, it is vital that the House knows the answer to those two crucial matters. For example, we know that the Government are contemplating a deregulatory Bill in which it is quite possible that new rules will be introduced to change the super- or enhanced affirmative procedure by cutting down or cutting out consultation.

The right honourable Oliver Letwin made it clear in his evidence to the Secondary Legislation Scrutiny Committee that some legislative requirements might change so as to,

“reflect the principle of proportionality”.

I am probably not the only person to worry about that word “proportionality”. Governments skip a proper consultative process at their peril. A good example is the lack of consultation on a crucial part of the recent Social Security (Personal Independence Payment) Regulations, which were changed by the DWP at the last minute. To say that the change put the cat among the pigeons is putting it mildly, and at least the Minister apologised for inadequate consultation on that occasion.

At the end of our report is a paragraph headed “New opportunities”, which I shall now turn to. The question arises that if a strengthened procedure is considered proper for some Henry VIII powers in certain Acts, why do we put up with such a comparatively crude way of considering some very important affirmative instruments that are not Henry VIII orders? What I mean by this is the “take it or leave it” procedure that the House has for considering affirmative instruments. They can either be agreed to or disagreed to, full stop. Non-fatal amendments or regret Motions to the approval Motion, whether agreed to or not, are in effect neither here nor there.

Our report is concerned with delegated legislation that is subject to enhanced procedure by statute, but it is high time that the Procedure Committee turned its mind to considering a non-statutory procedure for consideration of certain important instruments. This might attract, say, two bites of the cherry, by which I mean that noble Lords could be given a chance to have a preliminary debate before the instrument is taken through the House. The Government could be encouraged to table a proposal for an instrument which might then attract one or more suggested amendments on which votes could take place. Even if the Government decided to take no notice of any successful suggested amendments when the instrument was going through the House, at least there would have been the possibility of change, because any amendments would have been suggested before it was too late.

A recent candidate for such a procedure would have been the draft PIP regulations that I just mentioned. We know that the Government were running seriously out of time for them, and I well understand that DWP orders may have that problem, but it might have been a better instrument if the House had been able to have two bites of that particular cherry. In the event, the Government have published amending regulations to take account of the many representations made.

This begs the question of whether the House really has the scrutiny of ordinary affirmative SIs right. All my committee and the Secondary Legislation Committee can do is to recommend and warn. It is up to the House what then happens. Should the House be more robust in voting down instruments? In spite of the recommendation of the committee of the noble Lord, Lord Goodlad, on the House’s working practices, I am not particularly attracted to that course of action because I think it is a bit unrealistic and confrontational. The noble Lord, Lord Filkin, may disagree with me when we hear what he has to say later on; I am very pleased he is to speak. I would prefer the House to allow a genuine draft of the instrument to be debated and voted on, with suggested amendments before the instrument was agreed to.

I am very aware that many Peers believe that there should be a way of amending statutory instruments, but the whole point of delegated legislation is that it is just that: it delegates a power to a Minister to bring in some policy the House has agreed to in principle, and the whole point of my committee is to see that that delegation is not inappropriate. However, there is no reason why the House should not devise some way of improving the scrutiny of important statutory instruments without upsetting the whole legislative apple cart. I very much look forward to the rest of the debate. I beg to move.

20:22

[Lord Mayhew of Twysden]

My Lords, I warmly endorse the tribute that my noble friend has just made to the quality of our staff in the committee of which I hold the honour to be a member. I also warmly endorse the comments with which she concluded her remarks.

I suspect that all Ministers would in their heart of hearts prefer to legislate for as much of their policy as possible by means of an order, rather than undergo the rather more exciting—in Duke of Plaza-Toro terms—of having to succeed by the primary provisions of a Bill. That can be difficult and it can certainly be embarrassing when, for example, on judicial review, an exercise of discretionary power conferred on them is overturned by the courts and you have to come back with a Bill trying to put matters right.

Far preferable for them, therefore, to be able to remedy the setback by exercising a discretionary enabling power deriving from the Bill itself, especially since debate, as we have just been reminded, on the chosen order will be strictly time-limited and the order will not be amendable even if it contains a Henry VIII provision repealing a statute.

Seen from Ministers’ point of view, this is entirely understandable, but from the public’s and Parliament’s point of view, its defective character speaks for itself, and so strongly that it seems extraordinary that it was not until 1992 that the committee whose report we are discussing was set up. It is remarkable that the other place has yet to establish any such committee.

Here, I declare, I suppose, something of an interest, as I am now well into my third stint as a member of the committee, chaired in my first experience by Lord Alexander of Weedon QC and now, delightfully and extremely skilfully as we might expect, by my noble friend Lady Thomas of Winchester. I think that we can claim that the decision to establish the committee was well founded all those years ago. It is important to note that the merits or demerits of policies are outside our remit—that is not for us. We can only make recommendations, whether as to the appropriateness of the order in question for delegated legislation or as to the degree of supplementary scrutiny it should receive. However, year after year, it has proved extremely unusual, as my noble friend has mentioned, for our recommendations to be rejected or, at any rate, not to be accepted by the Government. When that happens, they have to account for it and can expect to receive some criticism in the Chamber.

I suggest that the first point that stands out about the special report that we are discussing is that it relates to a parliamentary success story, and a House of Lords story in particular. It is a story beginning with the recognition of an increasing curtailment by government of the parliamentary right, and duty, to scrutinise proposed ministerial legislation, an increase causing—to quote a 1992 report—“considerable disquiet”. A remedy was then proposed. That report stated that a delegated powers scrutiny committee would,

“be well suited to the revising function of the House”.

The story culminates in the establishment of your Lordships’ committee, in the sensible limitation of its remit and in the general recognition that the committee is there to address an important need—and that, with the advantage of some 20 years’ experience, the committee generally addresses it well.

The report also demonstrates that the originating problem is ongoing. Rather like a virus, it mutates. Unlike a virus, however, there are already antidotes, which in this report your Lordships’ committee endeavours to prescribe. I must be selective, given the list of speakers whom your Lordships will wish to hear. Let me select the important statement that the report makes that it is the practice of the committee to try to take a consistent approach in its judgments as to whether a strengthened power proposed in a Bill is appropriate to be delegated by Parliament to Ministers at all and whether, if it is, it will be subject to an appropriate level of parliamentary scrutiny, not merely by means of the familiar negative procedure or the affirmative procedure but by the super-affirmative procedure or whatever variant may be proposed. Consistency on the committee’s part is obviously desirable and necessary.

The trouble is that Bills come forward with “marked differences” in their provision for strengthened parliamentary scrutiny, as my noble friend has already said. As the report states, it is that variation that has led our committee to undertake the analysis at its heart. Here I agree with what my noble friend says about Table 1—and I would add Appendix 2—of our report. The contents fully justify that reaction. The detail certainly illustrates the outstanding service that we receive from our clerks. They have led the committee to recommend that—here I paraphrase—when proposing a strengthened scrutiny procedure, the Government should normally use an existing model. I shall explain the basis for that decision. I am personally very glad that the Government have effectively accepted this. It would be helpful to the House if it is brought into practice. That would be highly desirable and helpful to the public.

The Government have so far been less accommodating —my noble friend referred to this, too, so I can be brief about it—about adopting undertakings given by the previous Government, made during the passage of Clauses 12 to 19 of the Legislative and Regulatory Reform Bill in 2006. These are discussed at paragraphs 21 and 22 of our report, and they are of such a character that they would, if generally adopted, have an effective impact on future attempts to legislate in this way. That is a very important matter to consider. I hope that the Government can be induced to agree to adopt the undertakings given in 2006 legislation. It was a little disappointing to find from their report that they are considering this and will report in due course. Our report was published in July and the response is, I would respectfully suggest, rather overdue. I hope that it will be favourable.

I want to end without striking a churlish note. This report and the history leading to it serve to remind us that effective parliamentary scrutiny of delegated power, although it needs nurturing, is now strongly embedded in our governance. Accordingly, those inclined to perceive an irresistible progression of executive power can take heart from this afresh.

20:33

[Baroness Andrews]

My Lords, it gives me great pleasure to participate in this debate and I congratulate the noble Baroness on having secured it. I support what she said about the excellence of our report and thank her for the comprehensive way in which she set out the background to the report. It is a pleasure to serve under her wise, inclusive and very firm leadership. I must ask the forgiveness of the House if I cannot stay for part of the debate, but I shall be here for the end. The business of the House has gone slightly awry this evening.

Like the noble Baroness, I shall say a few words about the context of statutory instruments and their role in policy. In terms of parliamentary architecture, it is obvious that the DPRRC was a hugely important innovation in the bastion of parliamentary scrutiny. It is a model of scrupulous attention and is unique. It concentrates the minds of Ministers and departments very well. I remember, as a departmental Minister, the collective groan that would go up in the department if the DPRRC recommended that we change a negative to an affirmative instrument. We were always very conscious of the tightrope we trod. We listened, and for good reason, because essentially what impacts upon people’s lives in terms of legislation is not primary legislation but the statutory instruments. I once saw a statistic—I cannot stand it up but others may be able to—that 80% of the laws as they impact on individuals are transported through statutory instruments, whether that is welfare benefits, food safety, planning requirements or competition across the NHS. The trouble is that few people outside Parliament are au fait with the way that statutory instruments work or are debated. We should try to address that obscurity.

Secondary legislation serves government well. It served Henry VIII well and consolidated his powers of dictatorship. It serves his successors well, too. Sometimes, there is no mistaking the Government’s intention. There are those of us who still clearly remember the Public Bodies Bill, where the Henry VIII powers were used so blatantly and deliberately that they shocked the entire cast of the DPRRC to its core. The committee and this House brought the Government to book on that.

More often, Ministers argue rightly that secondary legislation is simply a practical solution to implementing change in an uncertain world. It enables flexibility and reflects a willingness to respond to changing circumstances. There is the impossibility of loading all the detail, implementation and enforcement into primary legislation. Yet that is a secondary weakness. In the interval as we waited for this debate to start, I added up the number of SIs that have been and will be before the House between 27 February and 19 March. There are 38 sets of regulations in that short period, with six yesterday in the Moses Room.

The irony is that while much of the effort goes into writing and rewriting Bills, not least in response to egregious errors, secondary legislation, which requires enormous care and attention to detail, tends to suffer from the lack of both. It is also a victim of time. We have lost count of the number of times we have desperately needed regulations before this House before the Report stage of a Bill, only to be told that we could not have them because they were in draft and officials were working hard but could not produce them.

It is for this reason that I am a firm supporter of the recommendations made by the Goodlad committee, on which I had the honour to serve, to improve the way we make legislation, train Bill teams and discuss the issues with draftsmen. Our task in the committee is to determine whether the level of delegation is right. As the noble and learned Lord, Lord Mayhew, said, tempting though it is to trespass into policy, we are always brought firmly back to the point that that is not our business. But we should ask the following questions. Have Ministers taken too many powers unto themselves? Is that deliberate or accidental? Is the level of delegation appropriate? Have the officials really thought about the alternatives?

Most of the time, as we find, delegation is appropriate. However, given the various scrutiny procedures and the variations they impose, as documented in the report, it is not surprising that this House, let alone Bill officials and draftsmen, gets confused. Sometimes, the Explanatory Memoranda that come before us are disingenuous in terms of the arguments about the level of delegation proposed. Sometimes, for example, departments misunderstand, wilfully or not, the role of precedence. Sometimes it seems that the subtle difference between negative and affirmative regulations, or the justification for the most severe of regulatory structures—the super-affirmative—have not been sufficiently on the departmental radar. No wonder that our report calls this a,

“complex patchwork of procedures”.

While reflecting on that, we have been provoked by more recent and specific changes that have introduced yet more variations and at the highest levels of the Henry VIII procedures. The noble and learned Lord, Lord Mayhew, said that we must not be churlish. I do not want to be churlish because we welcome any enhanced role for Parliament. However, the new variations are simply, and as we describe them, frankly, unhelpful. They confuse an already confused picture. The report lists the variations in terms of primary legislation, the multiplication of different models, the variation of procedures and the delegated weight, and the inconsistency in requiring whether supporting documents should be laid before Parliament. Equally frustratingly, an uncertain vocabulary adds another layer to that bank of rolling fog. We have super-affirmative versus enhanced and varying terms for the responses that are required to committee recommendations.

At least the Government agree with us that the muddle must stop. Like the noble Baroness, Lady Thomas, I am grateful that the Government see the need to stop improvising, to resist the temptation of making any more new variations to an existing and strengthened procedure, and to introduce consistency by undertaking to lay supporting documents setting out the detail of and rationale for any proposed orders under Section 19 of the Localism Act 2011.

However, that sensible response is, for me, overshadowed by the fact that, as noble Lords have said, there is genuine uncertainty about the future use of LROs—the most draconian of all forms of delegated legislation. The previous Government established the convention that LRO procedures would not be used to force through controversial legislation or when a scrutiny committee of either House had opposed the proposition. Why have the Government apparently refused to honour this? Why are they so silent on that point? What is so difficult about that aspect of accountability and good government? That is bound to raise suspicion, perhaps for the wrong reason.

I am bound to say that my fears have been compounded by the evidence that the Government are trying to reduce consultation procedures. Where does this sit with Mr Francis Maude’s commitment to greater transparency and open government? When will the Government learn that, in the long run, it is infinitely better to take people with you than to press on regardless of how those who are affected by the legislation see it and will have to implement it? I hope that the Minister can give us some reassurances today.

Finally, under “any other business”, I want to support what the noble Baroness, Lady Thomas, said about the way in which Parliament deals as a whole with affirmative resolutions. There is no doubt that the present situation is deeply unsatisfactory for everybody. The choice between a debate on unsatisfactory regulations where not even the most perverse consequences can be ironed out, challenged, or removed, and the cliff edge of a fatal Motion which wrecks the entire process, the good bits and all, serves no one. It does not serve the Government, who may have to retrieve their mistakes months later; it does not serve the credibility of Parliament, whose job it is to help get legislation right; it does not serve the purposes of this House; nor does it allow us to undertake our specific responsibility to make government think again and think carefully. That is what we do. It certainly does not serve people in the community who have to live with the consequences. We need a third way: an opportunity to nudge government without humiliating Ministers; an interim stage to consider regulations on the understanding that the Minister can take them away to rethink them. It might be a counsel of perfection in some cases—some regulations one would not want to see ever again—but, nevertheless, it would make for better law and, often, more humane solutions.

I hope that the Procedure Committee will listen very hard to what is said in the Chamber and act on it. I conclude by congratulating the committee on a good piece of work. I thank our clerk again for initiating it and I look forward to the Minister’s response.

20:43

[Lord Marks of Henley-on-Thames]

My Lords, I join my noble and learned friend Lord Mayhew and the noble Baroness, Lady Andrews in paying tribute to the chairmanship of the Delegated Powers and Regulatory Reform Committee of my noble friend Lady Thomas of Winchester. She consistently chairs meetings of our committee with a combination of efficiency, understanding and charm that enables even the driest of our debates to be enjoyable and interesting and, generally, to lead to conclusions in which we all have confidence.

As has been said, the committee performs a valuable function and performs it well, but there is considerable force in the central thrust of our special report. That is that the burgeoning range of arrangements for parliamentary scrutiny tends to deprive Members of this House of the ability quickly and simply to assess whether Ministers’ exercise of delegated powers will be adequately or appropriately supervised and controlled.

It is, of course, gratifying that, in general, the recommendations of the committee are accepted by Ministers, so that the work of the committee is, to that extent, effective. However, there are occasions when the committee rightly feels that the level of scrutiny should be a matter to be considered by the whole House. This is particularly true when strengthened scrutiny procedures are being considered. On such occasions, it would be helpful for Members of this House if the possibilities were generally limited to a few well understood procedures. That recommendation is at the heart of our report. The Government have promised to move in that direction, and this House should be astute to monitor how serious and disciplined the approach of the Government is in future.

I shall follow up the suggestion that my noble friend Lady Thomas made towards the end of her speech, which was supported by the noble Baroness, Lady Andrews, that there should be a better, more effective and more detailed specific way of scrutinising delegated legislation that is subject to the affirmative resolution procedure. The regret Motion, which is a familiar procedure in this House, is a blunt instrument indeed. Fatal Motions are even blunter and the House is understandably reluctant to entertain or to resort to them. If passed, a regret Motion gives the Government an opportunity to think again, but it does not compel them to do so. As a procedure, the regret Motion has two important flaws: first, it is entirely non-specific and while it is common that the Motion sets out in general terms the basis for criticism, it does not enable the House to consider and express a view on particular flaws in the instrument proposed nor does it give the House the opportunity to suggest alternatives or amendments that might make for better or more effective secondary legislation. Secondly, the regret Motion is generally ineffective in practice, even if it is successful. Generally, it is an instrument not of constructive scrutiny, which is the proper role of this House, but of outright opposition, which may be out of place, particularly given that, ex hypothesi, the enabling legislation has already passed through both Houses.

The two-stage process suggested by my noble friend would answer those criticisms. I fully appreciate and agree with her that delegated legislation is of its nature a matter for Ministers, subject to the appropriate level of parliamentary scrutiny. It is therefore not appropriate for us to introduce a fully fledged procedure for amending delegated legislation. That would be contrary to principle and the whole point of such legislation. However, I suggest that there might be many ways of achieving the objective of enabling the House to have a more directed and specific way of looking at draft instruments. My noble friend’s suggestion is certainly one which offers that prospect. On the first occasion that a draft instrument came before the House, the House would be in a position to suggest amendments that might improve it and to invite the Government to consider them. The Government would then have the opportunity to do so, knowing that if the will of the House were ignored, they would run the risk of being defeated when the draft was brought back to the House unamended. If, on the other hand, the Government wished to amend the draft, they could do so and bring the amended draft back to the House for approval.

I am not suggesting that this procedure would or should be invoked in every case, but it would be sensible for it to be considered and tested. I suspect that its introduction would probably not require any formal change of procedure. The House, the usual channels and the Government could then determine when such a procedure should be used and monitor whether such a new procedure added to the effectiveness of the House in scrutinising secondary legislation. I suggest that it almost certainly would.

20:49

[Baroness O'Loan]

My Lords, it is a great pleasure to participate in the debate this evening. In common with my fellow members of the committee, I want to express my appreciation to the chairman, the noble Baroness, Lady Thomas of Winchester, for the way in which she conducts the meetings and the business of the committee.

We are discussing specific issues tonight but they arise in the context of the volume and complexity of legislation passing through these Houses, which has grown so much over the years. We have only to look at the most recent public legislation figures for the last Session. In 2010-12 some 80 Bills came before the House; 10,000 amendments were tabled in the two Houses and, of these, 25% were accepted. In the same period, 9,432 measures of delegated legislative instruments were passed. That is a huge volume of new law cascading forth to be understood and applied. It is vitally important in cases that require scrutiny that it is properly carried out so that Parliament may achieve and carry out its functions. There is significant interest in the delegated legislative scrutiny processes, and studies are presently being carried out.

Many of the measures which issue as delegated legislation quite simply do not come for approval before any committee. About 2,500 of the 10,000 actually came to the Secondary Legislation Scrutiny Committee. Many of them are simply passed into law and the Delegated Powers and Regulatory Reform Committee has no power of scrutiny over delegated legislation introduced after the passing of an Act. Such scrutiny as does occur is the responsibility of others. However, questions may rightly be asked about whether there is sufficient scrutiny of the huge volume of delegated legislation, currently running at about 10 measures every day.

The committee examines each occasion on which power is delegated. For example, most recently, the committee was satisfied that it was appropriate for the orders prescribing rates of welfare benefits to be subject to no parliamentary control. The Bill leaves the Secretary of State and the Treasury with very little discretion so there is very little control that the House could usefully exercise. The role of the committee in that context is necessarily limited but it will consider whether any Bill contains delegated legislative power that is inappropriate and examine each occasion on which there is a delegation in any Bill.

For the general public there will be no requirement or even will to examine many of these measures, but there may be occasions when they need to know the law. They must find their way through a huge quantity of legislation and then interpret the measures, which frequently refer to a range of other measures, in order to apply the law. Such is the volume of legislation that the limit on available parliamentary time, together with the complexity of particular measures, means that legislative power is more frequently delegated to Ministers and others.

The chairman of the committee, the noble Baroness, Lady Thomas of Winchester, has explained the role of the Delegated Powers Committee in scrutinising Bills to assess the appropriateness of each occasion and the manner in which the exercise of the delegation of the legislative function occurs.

The Government decide which measures should be placed in scrutiny. Perhaps the most potentially sensitive measures are those that seek to amend primary legislation through the use of secondary legislation—Henry VIII powers. We devote particular attention to such measures, although in many cases the content of the measure is not contentious. However, the essence of what we do is to determine whether there is any inappropriate delegation and whether legislative power is delegated subject to an appropriate level of parliamentary scrutiny.

The committee is watchful. We ensure that we do not consider matters that are ultra vires the committee, no matter how tempting that may be on occasion, and it is tempting. We are also cautious, ensuring that when we advise the House we do not act hastily or inappropriately. Thus in 2010-12 we made only 55 recommendations to government, 48 of which were accepted. In this Session we have made 28 recommendations, of which 23 were accepted.

Noble Lords have described the variety of mechanisms through which delegated legislation can be scrutinised. The language in which we describe these procedures may be historic and can probably be improved. As a House I think we are very reluctant to refuse to affirm legislation or to challenge it. It could be otherwise. The committee has developed an almost invariable practice of recommending the affirmative procedure where there is no upper limit to maximum civil or criminal penalties in a delegated power to make orders or regulations. We have developed a series of standards which we apply.

The recent development of a number of super-affirmative or enhanced affirmative procedures, 11 in all under particular Acts such as the Northern Ireland Act 1998 and the Localism Act 2011, are examples of that. However, as the committee has made clear in the past, the insertion of a super-affirmative procedure cannot by itself bring a misconceived delegated power within the bounds of acceptability. While accepting, indeed admiring, the ability of my noble colleagues to find their way around the myriad conventions and procedure governing the passing of legislation, I am fairly sure that there are not many Members who could state the powers attaching to the exercise of each of the different enhanced scrutiny procedures. They are laid out in Appendix 1 of the fifth report, including powers such as that to require the laying of supporting materials; the requirement of consultation; and the power for the relevant committee to veto an order.

Such is the complexity of the current possibilities that the committee has recommended that the Government should not normally use new, enhanced security procedures, but rather one of the existing models. This recommendation has been accepted by the Government, as has the accompanying recommendation that if the Government propose the creation of yet another procedure, they should explain the reasons why.

There is such a variety of models now in use, each with its own requirements, that it should be most exceptional for any new type of procedure to be introduced. The committee has yet to receive a response from the Government as to whether they will confirm the undertakings given by the previous Government, which have been referred to by noble colleagues tonight, under the Legislative and Regulatory Reform Act 2006, the Localism Act 2011, and so on.

The Companion to the Standing Orders and Guide to the Proceedings of the House of Lords states that there is no set time limit for government responses to reports from the Delegated Powers and Regulatory Reform Committee, as these need to be made, and amendments tabled, to the Bill in question. However, this recommendation affects potential draft orders to be made under legislation passed in 2004, 2006 and 2011. It is clearly desirable that the Government respond rapidly and positively to the statement made by the committee in paragraph 21 of the report. Similarly, the Government were asked by the committee to put proposals to the Procedure Committee for how the House will scrutinise draft orders under six other Acts. It is welcome that the Government have agreed that those measures should be scrutinised by the committee.

Scrutiny in all its forms is a vital part of the legislative process. That part of the scrutiny which is carried out by the Delegated Powers and Regulatory Reform Committee is vital, as it goes to the heart of the exercise of the democratic mandate which Governments have by virtue of election. Where the Government seek to legislate to confer a power to delegate matters which are properly the prerogative of Parliament, then the committee must exercise its powers by applying standards to determine that this has happened, as occurred during the highly controversial passage of the Public Bodies Act 2011. The committee stated that if the House could find no overriding reason or exceptional circumstances which justified the inclusion of Clause 11 and Schedule 7—those powers which allowed the Minister to add any of 150 bodies or offices listed in Schedule 7 to any of Schedules 1 to 6, and hence to make them subject to abolition and other changes without further parliamentary intervention—the committee would recommend that they should be removed from the Bill. The clause and the schedule were both removed from the Bill.

This report is designed to ensure that no further complexity is introduced into our scrutiny procedures. It is modest in its requests. It should serve as a useful tool for those who seek to understand the processes which currently exist. The work of the House is complex and demanding. New, wider procedures for the scrutiny of delegated legislative instruments would possibly be beneficial to the quality of the legislation passed. For the present, however, I look forward to hearing the Minister’s response to the proposals.

20:59

[Lord Haskel]

My Lords, to most people outside Parliament, and to many inside Parliament, “delegated powers” is an arcane topic best left to specialists— something rather technical and dull. They are wrong. They are wrong because, as the noble Baroness, Lady O’Loan, reminded us just now, delegated powers are central to our democracy. I am grateful to the noble Baroness, Lady Thomas, for leading this debate, and for the skill with which she has led our committee.

The noble and learned Lord, Lord Mayhew, reminded us that Ministers cannot do everything, so they delegate some of their powers. In a democracy it is essential to see whether legislative power is delegated inappropriately, and to ensure that this scrutiny is carried out to an appropriate degree. The noble Baroness, Lady Thomas, reminded us that because of this the House became concerned about the unlimited discretion which some legislation gave Ministers in delegating powers by order or by secondary legislation, and so it formed a committee to scrutinise this aspect—and quite right too. That is entirely in keeping with the revising function of this House.

When legislation is proposed, the method of scrutinising delegated powers should be contained in that legislation. Some legislation makes no reference at all to scrutiny by Parliament. Some can be laid before Parliament and will be subject to no further debate but generally there is an affirmative or negative procedure, or a super-affirmative procedure, for scrutiny. However, in recent years many variations have been introduced; many Bills introduce their own form of scrutiny, which are listed by our report. As the noble Baroness, Lady Thomas, explained, the real purpose of the special report is to draw the attention of your Lordships to these variations of procedure and to make the point that they are helpful neither to Parliament nor to the public’s understanding of our work. I join the noble Lord, Lord Marks, in hoping that the outcome of this debate will be to arrive at some form of consistency and to rationalise the range of variations.

Not only your Lordships’ committee is concerned about this. When he was Lord Chief Justice, the appropriately named Lord Justice Judge said that his deepest concern related to the proliferation of so-called Henry VIII clauses that gave Ministers power to amend or repeal legislation by means of secondary legislation. He said that this would have the consequence of,

“increasing yet further the authority of the executive over the legislature”.

This is a warning of which your Lordships must take note.

It is, therefore, part of our duty to hold the Executive to account, and relative to this is the huge number of orders and regulations that come before your Lordships. All have to be scrutinised for delegated powers, and I cannot let this moment pass without thanking and congratulating the clerks and staff who run the Committee Office. They work under a lot of pressure so that the committee’s report on each item is published in time for your Lordships’ consideration. There are many tricky legal points, which our legal advisers, Peter Milledge and Allan Roberts, have to take into account. Their memory of precedent is quite phenomenal, and so are their tact and patience—all of which enable us to be consistent. I put my thanks on record together with the thanks of other noble Lords. Peter has been promoted, and so I welcome Nick Beach, who has moved up to Peter’s old place.

As I said, the proposals in this report are designed to improve the effectiveness of scrutiny in your Lordships’ House. One proposal regarding legislation is to standardise the procedures. We must also get an explanation of why the normal procedure will not work. However, what about orders and regulations? Most require Ministers to undertake consultation or lay supporting documents so that scrutiny can be thorough. Again, there has been a variation in the timing and requirements, and this, too, requires rationalisation. Some of the variations are contained in the original Bill.

Different Bills and Acts require orders to be scrutinised by different committees. However, as our report points out in paragraph 28, for six of the procedures the House has been unable to nominate a committee to undertake scrutiny of draft orders when they come along. It became urgent for the Leader of the House and the Procedure Committee to decide how the House would scrutinise draft orders under these Bills. The Bills are listed in our report. I am pleased to say that the Government have now indicated a response to this. I hope that your Lordships will accept these recommendations in the report as they will facilitate scrutiny.

When preparing for this debate, I learnt that at the height of the banking crisis, the Banking (Special Provisions) Act 2008 gave the Treasury the power to repeal any relevant statute bearing on the Act or any rule of law. Of course, this went through at a time of crisis. None the less, it is alarming because this is exactly what Henry VIII had in mind when he introduced his Statute of Proclamations in 1539. The recommendations in the report will help to ensure that this does not happen again in any future crisis.

21:06

[Lord Butler of Brockwell]

My Lords, I endorse the tributes which have been paid to the committee’s staff, advisers and chairman. They are well deserved.

It is indeed gratifying that the Government have accepted the majority of the committee’s recommendations. However, as has been pointed out, they have not responded to the committee’s recommendation made last July that they should clarify whether they will confirm undertakings that, in respect of draft legislative reform orders under the Legislative and Regulatory Reform Act 2006, they will not use those procedures for highly controversial changes and will not pursue such orders in the face of opposition from scrutiny committees in either House. Nor have they confirmed whether they will give similar undertakings in respect of draft orders under Section 5 of the Fire and Rescue Services Act and Sections 7 and 11 of the Localism Act 2011. It really cannot have taken since last July for the Government to decide whether they are willing to give such undertakings. I hope that tonight the Minister will give the Government’s response to those recommendations.

As the noble Lord, Lord Haskel, said, these procedures may seem technical, even arid, but they are important for this House’s role in scrutinising the Government’s legislation—a role for which the House has a deservedly high reputation. So much of the detail of the Executive’s lawmaking is done these days through delegated legislation that it is important that the House scrutinises that delegated legislation as effectively as we do primary legislation. In that context, I support the proposal of the noble Baroness, Lady Thomas of Winchester, that the House should consider rationalising the committee structure for the consideration of statutory instruments and should seek to work more closely with the other place through Joint Committees. Unlike primary legislation, which the two Houses consider sequentially, we frequently consider many statutory instruments simultaneously. In those circumstances, it would make more sense for the Houses to work together more closely through Joint Committees.

The noble Baroness, Lady Thomas, supported by others, suggested that in the case of controversial orders this House should be given two bites of the cherry—specifically, that there should be a debate some time in advance of the occasion of the House having to decide on an order so that the Government can take account of views expressed before bringing the order for the House’s decision.

I refer to the recommendations which the noble Baroness, Lady Thomas, described as more confrontational —that is, those made in respect of the scrutiny of delegated legislation by the Goodlad committee, on which I served. That committee pointed out that, despite a 1994 resolution by your Lordships’ House that it has,

“unfettered freedom to vote on any subordinate legislation”,

it has used its power to vote down secondary legislation very rarely indeed. This produces a strange unevenness between the House’s scrutiny of primary legislation and that of secondary legislation. The House does not hesitate to vote on, and often defeat, the Government on primary legislation, thus giving the Government the opportunity to think again. Why are we so reluctant to vote on secondary legislation?

The noble Lord, Lord Roper, whom I see in his place, pointed out to me that there is a difference between primary and secondary legislation. With primary legislation the Government can always resort to the Parliament Acts; however, that is of course the nuclear option. What normally happens is that when the Government are defeated in this House on legislation, they consider the matter further and either accept this House’s view or reverse it in another place. Similarly, if the Government were defeated in this House on secondary legislation, it is not beyond the wit of the Executive to bring back legislation if, having considered the matter, they wish to follow the same course in a form similar to that which they presented before.

I therefore hope that the Government and the House will give serious consideration to the Goodlad committee’s proposal for an alternative way of achieving the objective of getting the Government to think again. The proposal was that the House should pass a resolution reaffirming its freedom to vote down delegated legislation but assert that, when it does so, its purpose is to give the Government the chance to think again and that if the Government relaid a substantially similar instrument, and the Commons passed it, the Lords would not vote against it for a second time. That would be an alternative way of achieving the objective that the noble Baroness, Lady Thomas, has described—namely, giving the Government an opportunity to take account of the House’s views before passing secondary legislation. That would be in line with the House’s procedures on primary legislation.

This is one—just one—of the recommendations of the Goodlad committee on which the Government have so far remained studiedly silent. I know that if the noble Lord, Lord Goodlad, had been able to stay and take part in this debate, he would have asked the Minister when we could expect the Government to give some response to that recommendation. I hope that he will be able to provide some indication in his reply.

21:13

[Lord Soley]

I join everyone else in thanking the staff of the committee and I congratulate the noble Baroness, Lady Thomas, on the way that she chairs it and on producing the report. It has been very helpful.

For many years, I have had a concern that crosses over Governments: we have been increasing the amount of legislation by too much and, I am afraid, seeing it being increasingly badly drafted. I know that there are many reasons for that but the net result is that we end up with delegated powers that fill me with growing concern. As several noble Lords have said, if you read the words, “Delegated Powers and Regulatory Reform Select Committee”, you would think that a soporific way of starting the day. In fact, it is not just dry, it is arid at times, but—and this is a most important “but”—it is extremely important because it is about the way in which Parliament can control the Executive and what the Government are doing. If you use statutory instruments and other delegated powers excessively, unless you are very cautious about it, you will find that Governments have unexpected powers.

If people outside this House think that the subject is dry, they would be less inclined to think so when they consider the number of times that the committee has looked at a delegated power that would, if we had not had it changed, have allowed a Minister to increase fines to an unlimited level without an affirmative resolution of this House. Indeed, a quick look at tomorrow morning’s business in the Delegated Powers Committee tells me that there is another one on the Groceries Code Adjudicator Bill. If we do not get it changed, the ability of a Minister to fine by delegated power will have an unlimited price put on it. If people in the street knew that, they might quite rightly be a little alarmed.

I think strongly that Parliament has got to get better at dealing with scrutiny. I have held this view for many years. This House is very good at it but, having said that, with the increase in legislation, every time we pass more—and I am realistic enough to know that we cannot go back many years to when you could have far less legislation, because we live in a much more complex society—we have to think about the extra powers that government is taking, how we scrutinise them and how we hold them to account. That is really the context of this debate and it is very important.

I am glad that the Government have accepted a number of the proposals in this report. I do not wish to repeat them; I strongly agree with the proposals for improvement made by the noble Baroness, Lady Thomas, and echoed by the noble Lord, Lord Butler, a moment ago. The other key one, of course, which the Government have accepted is that they should not keep expanding the variety of orders that are made, which is increasingly confusing to members of the committee, never mind Members of the House. Heaven alone knows what would happen if someone outside this House tried to make sense of it.

At times like this, I often reflect that we used to make the assumption—if we go back a very long time in our history—that we could expect British citizens to know what was expected of them in law, and that they would know if they were in danger of breaking the law. It would be very difficult for anyone to know that now, including a qualified lawyer. This is why it is getting so much more important in our more complex society. I also hope that the Government will fully accept the recommendation to give reasons when they vary one of the existing orders. That is important.

We asked the Government—this has been mentioned a couple of times, but I want to repeat it—to confirm undertakings by the previous Government in respect of draft orders laid under Section 14 of the Legislative and Regulatory Reform Act 2006, the Fire and Rescue Services Act 2004 and the Localism Act 2011. I have looked again at the letter of the noble Lord, Lord Strathclyde—the former Leader of the House—written in November in response to our report, which was published in July last year. The final sentence of that letter says:

“Further consideration is being given to this point, and I will write to provide a full response in due course”.

Having had a long career in politics, when I hear a Minister use the phrase “in due course” I know that due course really means a long meandering river through the countryside that would make the Amazon look like a local village stream. It takes forever. It is frankly absurd that an answer to this question could not have been given earlier. If there is one thing I would ask the Minister to do clearly tonight, it is to give an undertaking that the Government will answer that question fairly soon. By fairly soon, I do not mean “in due course”; I mean, I hope, in the next month or so. It is unreasonable not to do so.

The committee also suggested that strengthened scrutiny should take place in respect of powers that were not actually Henry VIII powers, but very close to being such powers. That is important; we need to find a way of doing that. While I do not wish to elaborate on what has already been said about such powers, as a committee we clearly have to be attentive not only to Henry VIII powers but to those which are not quite Henry VIII powers but nevertheless give Ministers considerable powers. We need additional powers on that.

I do not know how many members of the committee or others would share my view, but I am in favour of the suggestion in paragraph 25 of the report:

“The House may wish to consider whether it might be more appropriate to take the bolder course of rationalising the entire range of current variations by legislation”.

We need to do that. I appreciate that that would need legislation and that it could not be quick. However, it would enable us to think much more strategically about how we approach this and to deal with the point rightly raised by the noble Lord, Lord Butler, with which I agree, that a number of these issues should be dealt with by a committee of both Houses. Put simply, at times both Houses are looking at the same things without knowing that the other House is considering them. I am tempted by that paragraph to say that we should go much further on this.

It has been pointed out already, and I do not wish to labour it, that the House does not always nominate a committee to undertake scrutiny of draft orders. At the moment, there are about six draft orders before the House which are not nominated to any committee. That again makes the suggestion of having a more strategic look at this problem quite attractive. The variety of these orders, the way in which they are being changed, the fact that some are not looked at at all and the fact that both Houses often look at some of these things simultaneously makes me think that a more strategic view would be better. It also could focus on how the two Houses emphasise the fact that Parliament must be able to control the Executive. That underlying principle is always there. If we could take a more strategic view, it might make a lot of sense.

It would also enable us to look again at some of the language we use. Saying to a person outside this House that something is a draft affirmative order or a super-affirmative order is more confusing than it needs to be. I sometimes think that the Henry VIII phrase is quite useful, because it implies authoritarian government, but it is not really meaningful to many people outside. Although I recognise the importance of having legal terms that at times have to be defined in legal or parliamentary drafting language, we should always bear in mind that unless we want everyone to have legal aid and to be able to see a solicitor, it would be a good aim for Bills to be able to be read and understood by an average member of the public. I know that that is a bit far-fetched but we should never lose sight of this: we are legislating for the public. It is the public who have to obey the laws, rules and regulations that are passed by delegated powers. We really have a duty to make legislation understood by them.

From an e-mail I received today, I understand that the Hansard Society is conducting a fairly detailed review of this whole area, which I very much welcome. I simply say to the Minister that perhaps he could take away the suggestion that that area is messy and not well understood. There is therefore a case for the House to find a way of reviewing it and seeing if we should not approach it by a form of legislation, as suggested in the opening lines of paragraph 25 of the report. Once again, I thank the staff and members of the committee, as well as the chair. Despite its title and, occasionally, its topic this can be a very interesting committee, where we do very important work which perhaps should be widely recognised.

21:23

[Baroness Gardner of Parkes]

I have been on the Delegated Powers and Regulatory Reform Committee for quite a number of years and I have served under a number of different chairman. We are very fortunate now in having the noble Baroness, Lady Thomas, and I congratulate her on securing this debate today. Tribute was paid to the various supporters and advisers we have had. In particular, Peter Milledge, who is now in charge of providing our legal advice, was mentioned. I should like also to acknowledge Allan Roberts and all that he did. During the early years when I was on the committee, he was the number 1. They worked very well together and clearly the committee continues to work well. The other point that has been raised many times about two bites of the cherry in selective cases is very valuable. However, I think that selective cases is right. You certainly would not want to turn it into something more general.

I was fascinated to read Hansard of 14 February 1990. Although I got my title in 1981, I had no idea of anything about this committee or even that it was being considered. As an Australian, and knowing nothing about Australian law, I was fascinated to see that Lord Rippon of Hexham—the person who introduced all this debate—referred to a report from Senator Rosemary Crowley and talked about this idea coming from Australia. Apparently Australia had it ahead of us here. He went on to say:

“She pointed out how zealous they are in Australia in dealing with Henry VIII clauses, how they can call upon the Minister to justify the powers which he seeks and the way in which they report to the legislature which can then decide whether or not the regulation or order-making power is appropriate”.

That is more or less what we do. He continued:

“Therefore, the Australian Parliament is enabled to legislate with open eyes. I wish we could say with complete conviction that we are doing the same in this country today”.—[Official Report, 14/2/90; col. 1410.]

The fact that we have this committee has made a tremendous difference. But when I was first appointed, I had no idea what all these terms meant. In fact, as time has gone by, they keep changing the terminology and it is pretty hard to keep up to date with it. It is desirable to have this debate for other Members of the House, who might never come to one of our meetings but often read the reports. People working on Bills are usually very careful to follow the recommendations that we put forward. For ordinary Members of the House to get some idea of what we do is very valuable indeed.

There were other contributions. I will never forget Lord Diamond. He evidently nationalised gas and he was determined to avoid it being privatised. He kept us here night after night, all night, while he argued on every single point. We got fed up with it, but nobody could do anything to stop him. He said that,

“we tend to deceive ourselves about the powers we have concerning delegated legislation. For example, where a Bill says that a proposal has to be approved by what we call for short the affirmative resolution, we tend to believe that that means something. It does not. It means nothing. It means that your Lordships can discuss the matter, full stop”.—[Official Report, 14/2/90; col. 1414.]

You can see that he had views of his own on these things.

Lord Beloff, who came in on the same list as I did in 1981 was a very famous historian and professor who set up the University of Buckingham and was a great character. He said that,

“there is also the fact that the volume of legislation which Ministers are persuaded or persuade themselves they need to introduce is of poor quality because little time is given to serious preparation”.

He went on to refer to Lloyd George setting up the welfare state and then said,

“how infinitely larger was the amount of parliamentary time given to a single Bill; how much wider in the country were the consultation and debate. We have debased the legislative procedure for the sake of haste”.—[Official Report, 14/2/90; col. 1421.]

All I can say is that that does not apply any longer. We now spend more and more time. If Lord Beloff was alive he would probably say that we were spending too much time on some of the things that we are debating here for hours.

It is interesting to see the comments from these people. Of course Earl Russell intervened: he had something to say on absolutely everything and was a fascinating character. He said:

“I warmly support the proposal for a committee”.—[Official Report, 14/2/90; col. 1425.]

To get that strength of feeling from him on that was really something.

I always thought that Lord Mishcon was the Peer with the golden words. I think I even said that somewhere in Hansard. He had been on the Greater London Council as the Labour Chief Whip. He had a great reputation there and was a very eminent solicitor. He could put anything into interesting words. He quoted something that had first been uttered some 58 years ago. He said:

“Your Lordships may feel that the price of slightly longer Bills is well worth paying if subordinate legislation is to be reduced”.—[Official Report, 14/2/90; col. 1427.]

That is exactly the opposite of what has happened in the world now. Subordinate legislation is growing and growing. Indeed, many people say that that is one of the problems. We are all very busy governing with subordinate legislation instead of primary legislation. He went on say:

“It has been said so often by Ministers that in this House noble Lords have the right to debate an affirmative resolution and to pray against a negative resolution … There is a tradition of reluctance to press disagreement to a division in the Lords”.—[Official Report, 14/2/90; col. 1427.]

That is still half true, but I would not say that it is entirely true. The noble Lord, Lord Marks, mentioned the defects in the Act, as have many others, and the opportunity that the noble Baroness, Lady Thomas, has suggested.

In October 1994 the fourth report of the Select Committee took up the fact that in 1992, as a result, presumably, of the 1990 debate, the Committee on the Procedure of the House,

“proposed that a Delegated Powers Scrutiny Committee should be established, ‘on a limited and experimental scale in the first instance’”.

Evidently it was so highly regarded, thought of, or effective—I am not sure which—that it was decided in 1994 that it should become a formal, permanent committee. I think that that was a very valuable thing to do.

My own contribution to the committee is limited because all I can do is look at things and try to exercise a bit of common sense. The only thing I can really claim to have had an input into was the very first ever regulatory reform order that we worked on. It was about pub licensing hours and referred to what I think were “minor variations” in pub licences. The order said that a variation need not be advertised in the local press or anywhere else. It could go through because the pubs would look after everyone and make sure that everything was fine, so there would be no problem. I went to a hearing in the borough where my daughter lives and discovered that it is quite a different thing if you live next door to a pub with a beer garden that wants to stay open until two in the morning because the noise spreads around all the nearby houses. I thought that it would be wrong for us to agree to it, even though the policy on regulatory reform was to simplify life and do away with a lot of bureaucracy and red tape. I agree with all that, but suddenly you found that you had fought your corner well at a licensing hearing, but the pub had gone back with what it described as a minor variation and, without you having any idea that it was even under consideration, it would suddenly be in place. I said that I thought it was not right and that we should have a consultation on it. The proposal then went out to all the local authorities and licensing authorities, and the response was really quite extraordinary. People felt very strongly about it. When it came for a decision by the committee, it was agreed that pubs would at least have to post a notice in the window of the premises so that local people, those who would be most affected, could see what was going to happen and would be given a certain period in which to exercise their right to object. I believe that that was the first ever regulatory reform change we made. It also set quite a good precedent for the committee in terms of assessing what really is and is not relevant and what is worth looking at.

It is a very serious committee and the volume of documents it deals with is pretty daunting. You have to read all the papers or you will miss out on what is important. Cases are presented thoroughly at our meetings. All the members speak and different views are expressed on many subjects, all of which is extremely healthy. I think that it is a marvellous committee which is greatly respected. It also works in with other committees such as the Constitution Committee. A lot of the Select Committee reports go with one another in order to make a complete whole. That is very important. This is a valuable debate because it might explain to Members of the House what we are doing and why we believe that it is important to carry on with our work.

21:34

[Lord Filkin]

My Lords, along with others, I thank the noble Baroness, Lady Thomas, on the one hand, for initiating this debate, but on the other regret that she invited me to take part in it, although that is perhaps churlish. I speak with respect for, but not much knowledge of, the Delegated Powers Committee and with too many years serving before the mast as chairman of what was then called the Merits of Statutory Instruments Committee. Having been there, I have an abiding interest in and commitment to the importance of this place’s scrutiny of secondary legislation, which is of course what we are debating tonight. I essentially want to ask the House whether those two committees, although they have undoubtedly improved the House’s procedures, have improved legislation. I do not think it obvious that the merits committee, at least, has, although I cannot speak for the Delegated Powers Committee.

I will advance the argument as to why. I start by reflecting on how government works. Many of us know how government works, either from the outside or the inside. Governments, quite rightly, are in power to do things. They have a manifesto—or even a modern version of it in the coalition agreement—and are massively busy and challenged, and are committed to delivering on what they think is either their manifesto or coalition programme and, they hope, getting another innings after the next election. Legislation is a necessary evil. It is a distraction from what Ministers really want to do but is necessary because that is how our constitution works. By and large, they want to get their legislation through the House as quickly, and with as little damage to it, as possible.

Ministers also believe they are right. Civil servants believe they are right, by and large, because they are usually more expert on a subject than most parliamentarians. Ministers believe they are right because they have to, otherwise they would not have the confidence to sustain doing a difficult job. That sense of confidence as a Minister or as an official does not make you sufficiently persuadable to change your mind, particularly when you have got to the position where you have committed your Government to legislation, in either primary or secondary form. It is not obvious that the processes of the House themselves will naturally lead Ministers to change their minds. Why should we expect that they will do so?

We know how we change their minds on primary legislation but let us consider, as my good friend the noble Lord, Lord Butler, has spelled out, what happens on secondary legislation. We cannot amend it, and it is quite right that we cannot amend it, for good technical reasons which I will not go into. We decide, although we are able to reject it, that we will not do so. By our own self-denying ordinances, we can neither amend nor reject an instrument: so why do we assume that that is going to change anything? The only thing that shifts Ministers and shifts policy is either the fear or reality of adverse publicity, or a defeat. That is a statement, for most of us, of the blindingly obvious. We get zero publicity on primary legislation, except when there is a defeat, and we get even less publicity—if you can have a negative—on secondary instruments, for pretty obvious reasons. It is hardly the stuff of the Dog and Duck. On that argument, we have a situation where it is not the media that will change Ministers’ minds but only defeats. However, we have said that we will never defeat the Government, for reasons that I struggle to understand.

The consequence of this—this is my central argument—is that the legislation that comes in through one door, in all its hundreds of pieces, exits the other door in all those hundreds totally unchanged. So what have we done in this processing factory to affect that legislation? I am open to persuasion that in some way the feel or quality of the aura of the legislation is better but the words are exactly the same. So what are we doing? Where is the evidence we are improving secondary legislation by our processes? I struggle to understand it. If noble Lords accept my argument—from too many years, probably, serving on the merits committee—that the processes are superb but that what the Chamber itself does is fundamentally flawed because it will not do anything about it when it thinks it is wrong, what should we do about it?

I will not waste your Lordships’ time on considering the alternative mechanisms. Wakeham made a very sensible recommendation, which was perfectly possible and came from a totally eminent committee. It was a very sane and sensible proposal. I thought that Goodlad, as explained by the noble Lord, Lord Butler, made an equally sensible one. These recommendations are significantly less frightening than our convention on primary legislation.

We defeat primary legislation up hill and down dale whenever we do not like the policy. It would be completely improper to defeat a secondary instrument when we did not like the policy because that would be to frustrate the will of Parliament, which had put that policy into practice in the primary legislation. So the only way that this House can legitimately reject a secondary instrument is because it is fundamentally flawed in some way, either in its execution or its policy design, or it does not actually reflect the instrument. In such cases, if the House thinks it is flawed, it ought to have the guts to do something about it and reject it.

Why do we get so excited about that? I do not understand it. As the noble Lord, Lord Butler, said so clearly, you probably could not bring an SI back next week but you could certainly bring an SI back in a month’s time with a better Explanatory Memorandum explaining why you thought the House was wrong and therefore you relaid the same order, or substantially the same order; or you said you had listened to the House and you thought it could be improved, in which case you would lay down a secondary order. The Government would lose a month or two on their processes; they might lose a bit of face—I do not think they would lose much face as not many people are watching—but as a consequence the House would have added something to the process.

Unless we are prepared to do something like that, with the greatest courtesy to my good friends on the committee, we are largely open to the charge of wasting time by debating these things, because debates by themselves change nothing. Unless we are prepared to reject bad secondary legislation, we would be better doing other things with our lives.

21:41

[Lord Curry of Kirkharle]

My Lords, I welcome the fact that the noble Baroness, Lady Thomas, has tabled this debate this evening, and I also welcome the committee’s special report. I recognise the crucial role that the committee plays in ensuring the adequate scrutiny of proposals put forward by Ministers in the other place.

It is encouraging that the report recognises that the existing scrutiny procedures around the Legislative and Regulatory Reform Act 2006 are robust. I declare an interest in my capacity as the non-executive chair of the Better Regulation Executive. I compliment the previous Government on taking the 2006 Act through Parliament.

Legislative reform orders are an important deregulatory tool at the current time to reduce burdens on business, but they are used only where there is no other legislative vehicle available. This has meant that only 18 have been made since 2006. Currently there are eight draft orders going through the process. More are likely to emerge from the Red Tape Challenge implementation but, again, only where no alternative vehicle can be found to progress these changes quickly.

The undertakings made by the previous Government have been referred to a number of times this evening. I understand that these were made when we did not know how the changes to the Act would be used in practice. I have looked at how the Act has been operating since 2006, and while I recognise some of the points made by noble Lords—I may be alone in making this comment—I am not entirely persuaded that it is necessary for this Government to renew the undertakings.

It is encouraging that the scrutiny process has been working well. The Act introduced a key safeguard with an effective power of veto for the committee. Any resolution to reject a veto commendation is taken on the Floor of the House without any time limit. As far as I am aware, neither scrutiny committee has felt the need to exercise its veto when considering draft orders.

I do not believe that the undertakings affect the ability of this House to debate important matters. The committee chooses the level of parliamentary scrutiny. Any legislative reform order that is more than just technical in nature will be debated, either in Grand Committee or the Chamber, and has to be approved in the Chamber. Noble Lords may disagree, but it strikes me that the level of scrutiny of proposals that come before the committee is at least as thorough as that of some Bills that pass through this House.

The 2006 Act is due for post-legislative scrutiny in 2014. I propose that this would be the time to review in detail the effects of the legislation. That is when we can establish whether the intended policy objectives have been met and, if so, how effectively.

21:45

[Baroness Smith of Basildon]

My Lords, I join other noble Lords in thanking the noble Baroness, Lady Thomas of Winchester, and her committee for the work that they have done in providing this report and securing the debate. I found the debate really interesting and highly relevant, which is something of an achievement when you think that we have harked back to 1539 and Henry VIII on numerous occasions.

I spent 13 years in the other place, where there is no such committee and not the same opportunity to have a report on delegated legislation. Despite the view of many that this matter is irrelevant and a bit technical, we have heard from a number of noble Lords about the huge impact that delegated legislation has on life. Since I have been in your Lordships’ House, I have found such reports to be invaluable.

It is a clear principle of our political system that the Executive have a right to implement their legislative programme—other noble Lords, including the noble Baroness, Lady Andrews, have made that point—but Parliament has an obligation to ensure that the laws passed are of the highest possible quality. Good scrutiny makes for good legislation and good government.

Most people outside Parliament, if they think about these matters at all, would be generally of the view that all legislation is debated in full by both Houses. I suspect that many would be surprised if they were aware of the volume and content of delegated legislation. Yet as the committee rightly points out, the context for the report is,

“the increasing practice of delegating significant legislative powers to Ministers, and the House’s continuing desire to ensure that appropriately robust scrutiny processes are put in place”.

It is clear that your Lordships’ House fulfils its role as a scrutiny Chamber, but it has to be recognised that the scope for scrutiny of delegated legislation is limited. The noble Baroness, Lady Thomas of Winchester, made it clear that it is appropriate to have delegated powers if they are used appropriately. I think that we all recognise that we can only accept or reject delegated legislation. For reasons of constitutional sensitivity, the latter happens rarely in the House of Lords, as the noble Lord, Lord Filkin, observed in his powerful comments. Acceptance or rejection is not a substitute for good line-by-line scrutiny, debate and possible amendment, but it is none the less beholden on us to do the best job that we can with such legislation.

Having sat in both Houses, I have no doubt that the scrutiny undertaken by your Lordships’ House is superior in this regard, and that role of scrutiny is taken very seriously and is fulfilled. As I have said, there is no equivalent committee in the Commons. The Procedure Committee in the other place has considered the idea, but it has never really got off the ground. It could be argued that its failure to have a similar delegated powers committee reinforces our role as a scrutiny Chamber, with the Commons perhaps accepting that as being our role and saying, “We'll leave it to the Lords to do this worthy, very technical work for all of us”. That is quite an imbalance and recognising the different roles of both Houses could be seen as a division of labour, but it also makes the scrutiny of delegated legislation here an even more important responsibility and one that we have to take very seriously.

The true value of scrutiny is in the capacity to revise and reject when required. Legislation of this kind cannot be amended and only withdrawn by government and retabled in another form, which is rare—although, coincidentally, it happened today on the health regulations. All this makes scrutiny of delegated legislation a bit of a blunt instrument and, as the noble Lord, Lord Marks of Henley-on-Thames, said, sometimes an inadequate instrument as well. That is why we should be concerned about the overreliance of Governments on this type of legislation. The report is very helpful in that regard.

The power to reject is available in rare cases. The powers that this House has in that respect were reaffirmed by the Cunningham committee in 2006. Its report on the relationship between the two Houses, which was accepted unanimously, said:

“There are situations in which it is consistent both with the Lords’ role in Parliament as a revising chamber, and with Parliament’s role in relation to delegated legislation, for the Lords to threaten to defeat an SI”.

That is in paragraph 229 of that report. On that point, the noble Lord, Lord Strathclyde, who was then Leader, said in communication with the Merits Committee:

“The Government welcomes the Committee’s conclusion that the opposition parties should not reject an SI simply because they disagree with it”.

The bar for rejecting delegated legislation—an SI—is set pretty high and is rarely used. It is all the more powerful because of that. Although your Lordships’ House can debate and, at times, vote on delegated legislation, it rarely uses that power, as we have heard. Yet tomorrow evening we have a vote on the Agricultural Wages Board. That is because an SI being heard in the Moses Room was negatived and now has to come before your Lordships’ House to be voted on. So there are occasions when this takes place.

Any significant increase in delegated legislation impacts on the ability of your Lordships’ House to effectively scrutinise it. The references to Table 1 in the report have been very helpful tonight. My noble friends Lord Haskel and Lord Soley, and others, pointed out the variations in the way delegated legislation had been scrutinised. That is not helpful to the work we do. More importantly, it is not helpful to the understanding of the work we do, both outside your Lordships’ House and with other noble Lords. The committee’s table is very helpful and makes it clear that there is a wide range of enhanced scrutiny mechanisms. Moves to simplify this array are extremely helpful, as is the committee’s recommendation that any additional procedures suggested in future should be accompanied by justification and explanation by the Government of the day.

The committee expressed concern as to whether the current procedures and the complexity in procedures are adequate given the increased use of delegated legislation. Given that increase, the Government should not think that this is an easy way to get legislation through. The comments made by my noble friend Lord Filkin were particularly relevant. Any Government must consider carefully in any piece of legislation that they bring forward whether it is appropriate to delegate order-making powers to Ministers. We have heard from many noble Lords—my noble friend Lady Andrews made this point—that clearly in many cases it is essential and reasonable to do so and we accept that. But as the committee notes, we may also want to look at why there has been such an increase.

First, there has been an increase in legislation generally. The noble Baroness, Lady O’Loan, gave some examples of how big that increase has been. There is also an issue of Bills coming to Parliament before they are truly ready—or “oven ready” as I have described them. I can think of two such Bills that I specifically worked on from the Front Bench. One was the Energy Bill in the last Session of Parliament. More than 50 pieces of secondary legislation will come from that Bill. That seems a huge amount and we have to question whether, if the Bill had come to us a bit later, some of those pieces of secondary legislation would not have been more appropriate in primary legislation.

One of the crucial parts of the Crime and Courts Bill—another Bill yet to come back to this House—is setting up a national crime agency, to be established through a framework document. That framework document was not available to your Lordships’ House even at Report stage, though it had been promised to us earlier. Given that that framework document will describe everything that the NCA is supposed to do and how it will do it, and so will be crucial to the establishment of the new agency, it would have been appropriate to have that before your Lordships’ House as part of the primary legislation. Instead it will be brought forward by order that will be unamendable and will not have same the degree of discussion and scrutiny. To my mind, it is an integral and essential part of that Bill. Again, it would have been better if that Bill had taken a little longer to come to your Lordships’ House and not been one of the first Bills off the blocks, so that that information was available to noble Lords.

The Welfare Reform Bill is almost entirely framework legislation. We are seeing so many regulations for the Health and Social Care Bill and for LASPO. All the Bills that I have mentioned were totemic pieces of legislation, highly political but with much of the meat left to delegated legislation. What opportunity has there been for Parliament properly to scrutinise the Government’s intentions and for this House to play its role in assisting the Government by looking at whether legislation can be improved?

When such a significant part of legislation is coming forward as delegated legislation, we need to delve deeper into the question of whether the Bill was really ready, whether it was oven-ready, before coming to your Lordships’ House. It is not appropriate for the delegated procedure to be used when it would have been entirely reasonable to expect that part of legislation —the NCA is probably the best example that I have used—to be in the Bill. A further question to ask is whether it is appropriate for the issue. I cite the report:

“One principle underpinning our work is that no level of parliamentary scrutiny can in itself make appropriate a power which it is inappropriate to delegate to secondary legislation”.

Finally, I turn to the other recommendations in the report. Comments were made on the existing models of scrutiny. I am really pleased that that was addressed by the committee, because good scrutiny requires good understanding of procedures. I entirely agree with the committee that variation leads to increased and unhelpful complexity. That has grown up and it is right to address it at this stage.

On the issue of supporting documents, specifically under Section 19 of the Localism Act, I share the committee’s bemusement. I cannot imagine why the Government would not want to publish supporting evidence and information to assist your Lordships’ House in considering legislation. It seems to me to be helpful to your Lordships’ House and to the Government. I would be interested to hear the noble Lord’s explanation on whether the Government accept the moderate recommendations of the committee. The Localism Act does not include a requirement for supporting documentation; but neither does it include a requirement that Ministers should give a reason why there is no supporting documentation. My interest is not just in the specific point on that but why the Government think that it is appropriate to move away from the principle of having supporting information. I cannot recall a precedent. I am not making a party political point, because there may well be precedents under the Government of whom I was a member, but I am genuinely puzzled and an explanation would be helpful.

Perhaps I may refer to the point eloquently made by my noble friend Lady Andrews about the undertaking given by the previous Labour Government, which is referenced in the report. It was made by Jim Murphy during the Second Reading of the Legislative and Regulatory Reform Bill. He said:

“I am giving a clear undertaking today that orders will not be used to implement highly controversial reforms, that they will not be forced through in the face of opposition from the Committees of this House and that the Committees’ views on what is appropriate for delivery by order will be final”.—[Official Report, Commons, 9/2/06; col. 1058-9.]

I agree with my noble friend Lady Andrews that it is disappointing that the Government have not yet endorsed that approach, but I notice that the House is to debate on Thursday an amendment to Standing Order 72, which refers to those matters under the Localism Act 2011 and Section 5E of the Fire and Rescue Services Act 2004. That is also mentioned by the committee in its report. The committee asks that the Government be very clear about whether they intend to give those same undertakings specifically in respect of those sections of those Acts.

Having read what the Government have put before the House for Thursday 7 March, I am not sure that it fulfils the function that the committee is asking for. It is a limited improvement. Unless I am mistaken—I read it quite hurriedly—it does not go as far as the committee would have liked. It merely states that it should go to the Merits Committee or the Delegated Legislation Committee. If the noble Lord could comment on that, that would be helpful.

In conclusion, it would be helpful if the noble Lord could clarify the Government’s position. All Ministers are aware that legislation benefits from scrutiny. I admit that it is sometimes uncomfortable at the time for Ministers to be scrutinised, to lose a vote or to lose part of a Bill that a Minister considers to be important, but it is often that legislation is proved and problems are prevented further down the road. The debate we have had today illustrates yet again that these responsibilities on scrutiny and revision are taken very seriously.

Suggestions and recommendations were made in the report and by speakers in the debate. It would be helpful if the Minister, in the spirit of your Lordships’ House doing the job that it is required to do as effectively as possible, could respond to those comments. I agree with the comments made by the noble Lord, Lord Butler, about the delay in the Government’s response. I understand that it happens—it has happened under all Governments—but when we are talking about such crucial matters as, in a sense, how effective your Lordships’ House can be in scrutinising legislation and, increasingly, delegated legislation, any guidance the Minister can give on the Government’s thinking would be extremely helpful.

22:00

[Lord Wallace of Saltaire]

My Lords, I approached this debate with considerable trepidation. When I first came into this House, I was told by several people that, after the Clerk of the Parliaments, the greatest expert on all matters of procedure was the then head of the Liberal Democrat Whips’ Office, Celia Thomas, who is now my noble friend Lady Thomas of Winchester. When I started to read into this subject, I discovered how little I understood about the processes of scrutinising secondary legislation and, indeed, about the difference between a remedial order and a legislative reform order. I now understand, and I hope I still will in a week’s time, but it has been a journey of exploration.

This has been a very useful debate, and I start by agreeing with the noble and learned Lord, Lord Mayhew, that this is a success story. What we have seen in this Chamber over the past 20 or 30 years is a gradual rise in its effective ability to give scrutiny. As a young academic, I was an adviser to Lords and Commons committees and I discovered that Lords committees were much more serious in many ways than Commons committees and much less partisan. Members had read their papers, they came and they asked about paragraph (15) and what precisely the Government thought they meant by it. That is, as the noble Baroness, Lady Smith of Basildon, said, a different function from that of the Commons, but it is a very useful function. We should be very proud of it and cling to it.

Much of the best work this House does is done in its committees, and I hope that will continue to be the case. There is a necessary tension between the Executive and the legislature and listening to this debate I was thinking that much of the press comment on British government is a matter of seeing a conflict between the Government and the Opposition, but there is also a very positive, necessary tension between the Executive and the Legislature, whatever that may be. We play our role—the Cross-Benchers and others in this House—by providing the detailed scrutiny that does not get on to the front page of the Daily Mail but does improve the quality of legislation. For that reason, I have more sympathy for the suggestion from my noble friend Lady Thomas of Winchester that we should move towards looking at draft SIs than for the Goodlad proposal that the House should assert its right to vote down. As the noble Baroness, Lady Smith, said, that should be regarded as the reserve option, the exceptional circumstance. Greater dialogue with the Government about progress on SIs is a much more effective way to influence.

When I first came into the House of Lords, I was asked what I thought the power of the Lords was. After a bit, I said, “I think it’s the power to embarrass”. That is quite an effective power in the dialogue we have with Ministers. The power to publish and to whisper to a visiting journalist that this Minister has not really got it right yet are quietly effective in the corridors of Whitehall, and that is the way this Chamber should operate.

A number of noble Lords suggested that the number of SIs and the area of subordinate legislation are growing. I am pleased to say that, from looking at the statistics, that is no longer the case. In the legislative year 2007, nearly 1,200 SIs went through. In 2011, there were some 750. Cynics might suggest that the longer Governments are in power, the more they are likely to resort to SIs. If that should be the case and this Government stays in power for long, I trust that Members of this House will point that out and keep Ministers up to the mark.

I have some sympathy with those who say that slower government is better government and that less legislation is better legislation. The problem, which we all recognise, is that in an era of 24/7 media and of lobbies insisting that Ministers should take on everything they are lobbying for, it is very difficult for Ministers to resist those outside pressures. It is thus up to Parliament to keep pushing back and saying, “Think about proportionality. Think about whether this is necessary. Think about whether this is desirable”.

I am fascinated—I now at last understand this aspect of Henry VIII powers. I thought when I first heard about Henry VIII powers that they were a way of keeping numbers in the House of Lords under control. I have sometimes wished that they might be reintroduced as a means of keeping the numbers down and allowing new blood to come in, so to speak. Henry VIII powers are clearly something we always wish to question. The question of how clear Governments should be about the implications when they put new legislation through is something we can accept as desirable in terms of good legislation. The Government accept all those criticisms and the House of Lords will, I hope, maintain its effort to keep the Government, of whatever variety, up to the mark.

The noble Baroness, Lady Andrews, incidentally, suggested that 80% of legislation consisted of SIs. I am not sure where that statistic comes from. If the noble Lord, Lord Pearson of Rannoch, was here he would say, of course, that 80% of legislation was forced on us by the European Union. I suspect these statistics are both a little—

[Baroness Andrews]

My Lords, I was saying that it has been calculated that 80% of the impact on people comes via SIs, not that 80% of legislation is made through SIs. That is why I find it difficult to source. I will try to find a source for the Minister.

[Lord Wallace of Saltaire]

I understand. This was an extremely valuable report, in particular for pointing out that we have wandered into a situation where there is considerable diversity—indeed, almost a confusion—of different sorts of arrangements under secondary legislation. I can imagine how these will have grown up with Ministers from different departments making specific concessions on different Bills. The committee is quite right to say that we should exert pressure to bring things back to as common a model as possible.

The former Leader of the House, my noble friend Lord Strathclyde, wrote to my noble friend Lady Thomas last November, accepting the committee’s conclusion that, wherever possible, existing procedures for enhanced scrutiny should be used. In his response, which I have deposited in the Library, my noble friend noted that there may be exceptions where existing procedures are not suitable, but where the Government sought to create a new procedure they would clearly set out the case for doing so.

The committee’s report also invited the Government either to set out the case for not requiring supporting documents to be laid with draft orders under Section 19 of the Localism Act 2011—to which a number of noble Lords have referred—or to give an undertaking to lay supporting documents when laying any draft order under that section. I can confirm that the Government have given an undertaking to produce material setting out the detail of, and the rationale for, any proposed order under Section 19 of the Localism Act 2011, and to provide relevant background to support the parliamentary process.

The committee’s report also looked at orders made under Section 14 of the Legislative and Regulatory Reform Act 2006. We welcome the recognition that the existing scrutiny procedures for 2006 Act are robust. The committees scrutinising such orders can choose which scrutiny process should be used. They also have the power effectively to oppose any highly controversial measures. Ministers are obliged to consider the committees’ recommendations and cannot easily set them aside. They would need to persuade the whole House to overturn any recommendation by a committee to reject an order.

In practice, any legislative reform order that has been identified as highly controversial during the consultation stage has been withdrawn. Some measures have returned with increased scrutiny in a Bill. Neither committee has ever felt the need to exercise its veto when considering draft orders. This is why the Government have not felt the need to renew the undertakings given by the previous Administration. This is not a change of policy. The undertaking was given by the previous Government in 2006, at a time when it was not clear how the powers in the Act would be used. It is now clear that the process of bringing forward draft orders and the scrutiny process has worked well. However, I recognise that some noble Lords have strong views on this issue, so we are willing to take it away and consider it further.

The Government believe that legislative reform orders are important tools to reduce burdens on business, taking forward deregulatory measures that do not fit into other legislative vehicles. The report also touched upon orders made under Section 85 of the Northern Ireland Act 1998, Section 102 of the Local Transport Act 2008 and various orders made under sections of the Local Government Acts 1999, 2000 and 2003. Some of these have been rarely, or never, used. Section 85 of the Northern Ireland Act has been infrequently used and, following the devolution of policing and justice in 2010, its use is likely to decline further. No orders have been made under the powers in the three Local Government Acts. In relation to the Local Transport Act 2008, the committee’s report on the original Bill at the time noted:

“We consider both the delegation and the level of scrutiny proposed for the powers”,

in these clauses “to be appropriate”.

The noble Baroness, Lady Thomas, touched on the mechanism by which we debate and approve secondary legislation, particularly the system of consultation and the time allowed for it. Any changes would of course be a matter for the Procedure Committee. I would not wish to pre-empt its discussions, but I acknowledge the importance of the process of consultation and of having a process which commands public confidence. Again, I will take that back to the Cabinet Office.

There is of course a great variety in the significance of secondary legislation laid before the House. It is worth remembering that Parliament itself delegates powers to Ministers and, advised by the DPRRC, decides which form of scrutiny—negative, affirmative or super-affirmative—is appropriate for any particular delegation. In addition, a significant proportion of secondary legislation is already published in draft, with the consultation process beginning long before instruments are laid.

The noble Lord, Lord Butler, suggested rationalisation of the committee structure and greater use of Joint Committees. I think a number of us would want to take that away and think about it further. I am more persuaded by the arguments of the noble Baroness, Lady Smith, about the different functions of the two Houses. My limited experience of serving on one Joint Committee suggested that the two Houses do not always blend terribly well. A great deal depends on the subject. To the credit of this House, we tend to approach things in a less partisan and more detailed manner. Perhaps there is an argument that maintaining a degree of duality may therefore be functional.

[Lord Soley]

I understand that. I have some concerns about the idea of making it totally Joint Committees; they are difficult. However, that does not rule out looking at the way in which the two Houses are examining the same bit of legislation at the same time, without being aware of each others’ views. In a way, it is also about harmonisation.

[Lord Wallace of Saltaire]

I take all those points on board. This is the sort of question that we would naturally want to continue discussing.

I very much hope that the quantity of secondary legislation will continue to decline. The general power of competence for local authorities, for example, reduces the necessity of detailed secondary legislation on a range of issues.

[Baroness O'Loan]

Perhaps I may ask the Minister to check that the quantity of secondary legislation is declining. It is possible that the number of statutory instruments is declining while the amount of secondary legislation is increasing.

[Lord Wallace of Saltaire]

My Lords, I will get the Cabinet Office to check and will write to the noble Baroness and others if my figures are way out, but I am hopeful that we have seen a reduction in the past three years. I also hope that the efforts that the Government are now making to decentralise within England and to give a power of general competence to local authorities will result in a further reduction in the number of secondary legislative measures.

This has been a very useful and constructive debate. It is the sort of thing that the House needs to do from time to time. I add my thanks to the noble Baroness, Lady Thomas of Winchester. I continue to learn from her about the procedures of this House, and I hope that I will continue to learn from her, as many others will, for many years to come.

22:15

[Baroness Thomas of Winchester]

My Lords, I thank all noble Lords who spoke tonight in this most fascinating debate. I am very grateful for the kind but quite unmerited remarks about me. I should put on record our great thanks to Allan Roberts, who was our principal counsel for many years. He did not have a hand in this report, but I am very pleased that he was mentioned, because his contribution to the work of the committee has been outstanding.

I will not make another speech, because the hour is late. It is extremely tempting to do so, because there are so many matters that I would like to take up. I loved the trip down memory lane taken by the noble Baroness, Lady Gardner, and I was very pleased that the noble Lord, Lord Filkin, was so trenchant in his remarks. My suggestion would not mean that the Government would not face the prospect of the House voting against such an instrument; it would simply mean that they would have early warning of it so that they had the possibility to make changes. However, I will not say any more at this point except to thank everyone for taking part.

Motion agreed.

House adjourned at 10.17 pm.