If the Strathclyde review neuters House of Lords influence on delegated legislation it will empower the government not the House of Commons.
Parliament’s consideration of the controversial Tax Credit regulations in October reflected some of our key concerns about the scrutiny of Statutory Instruments (SI), in particular the heavy burden of scrutiny responsibility that falls on the House of Lords. Unfortunately, the Strathclyde review, which has been set up in direct response to the decision by the Lords to delay these regulations, may further weaken an already deficient delegated legislation process if it renders powerless its only effective feature – the influence of the Lords.
Last week’s reversal of the planned cuts to Tax Credits finally sealed the fate of the Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015. These regulations had effectively been placed in a state of ‘legislative purgatory’ following October’s decision in the House of Lords to delay their approval until the government could provide further information to support the impact of the policy changes.
That decision led to talk of a ‘constitutional crisis’ with Ministers arguing that the unelected Upper Chamber had no right to hold up a financial/tax measure already approved by MPs. In an earlier blog post we outlined why Peers would be acting within their procedural rights and responsibilities to take a view on the Tax Credit regulations. We also made it clear that the House of Lords would not be acting without cause if they rejected the SI, given the concern expressed by various committees, including the government’s own advisory committee, regarding the scant explanations and lack of available evidence provided to help MPs and Peers take an informed decision on the SI.
Nevertheless, the government concluded that the Lords had crossed a constitutional line and the former Leader of the Upper House, Lord Strathclyde has subsequently been tasked to lead a review to consider “how to secure the decisive role of the elected House of Commons in relation to its primacy on financial matters, and secondary legislation”. And in recent days it has been reported that one of the reform options currently being considered by the review panel could see the Lords stripped of their ability to veto delegated legislation.
This approach would be acceptable if the House of Commons was both willing and able to play a decisive role in the scrutiny of delegated legislation. But as we outlined in our report, The Devil is in the Detail: Parliament and Legislation, published last year, this is simply not the case.
The scrutiny process for delegated legislation has become unnecessarily complex such that most MPs simply don’t understand it. And the procedures - particularly those for praying against negative instruments and Delegated Legislation Committee debates for affirmative instruments – are weak. Many of the MPs we interviewed simply weren’t aware of the practicalities relating to the scrutiny of statutory instruments. They did not know that they could table a motion against a negative instrument using an Early Day Motion (EDM), and when they realised, they were bemused, for EDMs are widely regarded by MPs as a waste of time and money. And a number of the MPs we spoke to confirmed that their party whips had told them that it was perfectly acceptable – indeed preferable – to get on with their constituency correspondence during a Delegated legislation Committee meeting.
Consequently a heavy burden of scrutiny responsibility falls upon the House of Lords. Its scrutiny committees are more engaged in the process, more influential with government, and Peers generally have more appetite than MPs for the detail and technical work required to look at a thousand SIs a year. This was no more apparent than during the progress of the Tax Credit regulations last month.
MPs and Peers cannot amend SIs so a key component of the effective scrutiny of delegated legislation in the House of Lords is the possession of a veto power. It gives purpose and leverage to its scrutiny committees. Judicious use of the power – something we said in our report it should actually utilise more regularly given the level of ministerial abuse of the delegated legislation process – can have a seismic impact in Whitehall, forcing departments to be more attentive. Without it, Peers’ influence over the process will be significantly diluted if not completely nullified, thus further empowering an already over-mighty executive in the process.
Given the inadequate nature of Commons scrutiny, any reform that curtails the role of the House of Lords in relation to delegated legislation thus risks turning an already deeply flawed process into a farce. Changes to the Lords should only be made once full consideration has been given to the role of the House of Commons. Consideration, in isolation, of the role of just one House in the delegated legislation process runs the risk of doing more harm than good.
That’s why in our report, we proposed a fundamental review of the entire legislative process looking at how both primary and delegated legislation is prepared in Whitehall and scrutinised in Westminster by both Houses. The system we have for making laws is broken. The issues are now so serious that only a wide-ranging review will do.
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