§ 4.53 p.m.
§ Lord Simon of Glaisdale rose to move to resolve, That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration.
§ The noble and learned Lord said: My Lords, the purpose of the Motion, as your Lordships will have gathered, is to make clear that there is no convention which precludes your Lordships from voting on subsidiary legislation. I was glad to hear what the noble Lord, Lord Stoddart, said about the view that he has expressed in the sub-committee, and which I gather received general consent there.
I put down the Motion because it appears that there has been some attempt by members of the Executive to argue that your Lordships were inhibited in the way that I suggested. On Second Reading of the Deregulation and Contracting Out Bill, having referred to the Procedure Committee, whose report your Lordships have just been considering, the noble Lord, Lord Strathclyde, said:
In this way, the House need not depart from its convention that it does not divide on secondary legislation".—[Official Report, 6/6/94; col. 956.]
§ What the noble Lord, Lord Wakeham, wrote to me was in virtually the same words. Under those circumstances, it appeared to be necessary to resolve the matter in the way the Motion seeks.
§ As I understand it, a constitutional convention is a rule of practice on the part of some organ of the constitution which it regards as more or less binding, according to the length of subsistence of that practice, according to its acceptance on behalf of the organ, its general recognition by authorities, such as leading text books, and, above all, by its practical convenience. On all those criteria there is no such convention as it would seem was sought to be asserted. I should add that, although it is regarded as more or less binding, according to the criteria which I have suggested, it will never be regarded as absolutely binding as a rule of law is binding.
§ In the light of that, it may be convenient to compare the asserted convention with some undoubted conventions of the constitution both here and abroad. A very powerful convention was the United States 357 convention that no president should enjoy more than two terms. That dates from the very first presidency and was asserted in terms by President Jefferson very soon afterwards. It was recognised almost universally. It was powerful enough to prevent President Grant and then President Theodore Roosevelt from standing or enjoying a third term, as; they wished. But being only a convention, it did not prevent, in the exigencies of the Second World War, Franklin Roosevelt from enjoying a third term, and, indeed, entering on a fourth, which shows that even a very strong convention yields to convenience.
§ The second example I can give shortly. It is the convention as to resignation when a government are defeated at the polls. During the 18th century and most of the 19th century, the Government resigned only after meeting Parliament and being refused a vote of supply, or its equivalent, a vote of censure. But at the end of the last century, both Gladstone and Disraeli, after some hesitation, resigned on defeat at the polls, and that was practised by every government up to 1923. But in that year there was a hung Parliament and the Prime Minister, Mr. Baldwin, waited to meet Parliament. That was the convenient course for a hung Parliament. Thereafter, the former Gladstone/Disraeli practice was resumed and has gone on ever since, although I do not doubt that if we had another hung Parliament, it might well be considered convenient for the government defeated at the polls to meet Parliament and to see what happens.
§ The third convention I can mention very shortly; it is the Salisbury Convention. I need not go into that because it was debated at length in your Lordships' House and its parameters were canvassed on the Maastricht Bill and on the transport Bill. It was an acknowledged convention, an acknowledged limitation on the powers of your Lordships' House, and has been recognised as such. I hope that I shall not be thought impertinent if I say what a pleasure and privilege it is for us to have a scion of that famous house again leading your Lordships' House. What the noble Viscount has done in relation to this resolution bodes very well for the future of your Lordships' House.
§ On those criteria, how does the asserted convention measure? It has existed for only a decade or so. During the 1970s, both parties in opposition voted against statutory instruments, the last occasion being with regard to the Rhodesian sanctions. Therefore, the rule of long-subsisting practice entirely fails.
§ As to its acceptance, I can find no evidence of its acceptance by your Lordships who, after all, are at the receiving end. I see that the noble Lord, Lord Stoddart, bears that out. Nor is it recognised by any of the authorities that I have been able to find. I have looked at Shell on the House of Lords, at Erskine May, at Griffiths and Ryle on Parliament, which had the participation of one of the Clerks of your Lordships' House. None of them mentions any such convention; nor does the leading authority on constitutional conventions—Marshall on Constitutional Conventions—mention it. On the contrary, they all 358 mention the instances on which your Lordships' House did vote against subordinate legislation. Therefore, there is no consensus there.
If more were wanted, it is really inconsistent with the terms in which subordinate legislation is enacted:
No order shall be made … unless a draft of that order has been laid before and approved by a resolution of each",
House of Parliament".
§ The two Houses are co-equal in that respect. It does not refer to, "approval by the other place and rubber stamping by your Lordships' House". On the contrary, your Lordships have the full power of approval which involves disapproval too.
Also, it is inconsistent with the Standing Orders of your Lordships' House. Standing Order 55, which deals with quorum, states:
If … on a Division upon a Bill or upon any Question for the approval or disapproval of subordinate legislation",
and so on. That is quite inconsistent with there being any such convention as appears to be asserted.
§ In view of that, I suggest that we can proceed very rapidly to approve this Motion. I should add two other considerations: first, the increasing importance, both in scope and in substance, of subordinate legislation. Before his greatly lamented death in a road accident, Mr. Cryer, the very much admired chairman of the Joint Select Committee on Statutory Instruments, wrote to the Leaders of both Houses complaining that subordinate legislation was now going well beyond what he, in his homely phrase, called the "nuts and bolts" of legislation; in other words, putting the final and subsidiary finishing touches on a mechanism which is plainly blueprinted in the principal legislation. If the principal legislation lays down clearly the scope of the subordinate legislation, there should be no question of the sort of matters of which Mr. Cryer complained.
§ The second additional reason I put forward with some diffidence; that is, most unfortunately for parliamentary government, the other place is held increasingly in low esteem. Certainly it would be inconsistent with comity between the two Houses to spell that out or expatiate upon it, but your Lordships must take account of that if there is any proposal to limit your Lordships' legislative powers over subordinate legislation.
§ The other place seems to be increasingly under the hand of the Executive. With regard to the negative procedure, frequently the orders are not reached at all and that being so, it seems to me that for the future of parliamentary government, a burden rests on your Lordships' House to make sure that parliamentary purposes are still performed adequately, principally in regard to countervailing the power of the Executive.
§ Having said that and having asserted that there is no such convention as was sought to be asserted, I should add that I do not believe, if your Lordships' accept the Motion, that voting against subordinate legislation will be an everyday concern. In the 1960s and 1970s, when your Lordships on both sides voted against subordinate legislation, that happened only in relation to an average of two orders per Session. I should expect that to be very much diminished if your Lordships pass the Motion 359 because I believe that the Executive, in particular its bureaucratic aspect, will be much more cautious as to what may happen in your Lordships' House.
§ At the moment I can think of only three matters on which your Lordships may wish to vote against subordinate legislation. One is really contained in, as I mentioned, Mr. Cryer's advice; namely, when the subordinate legislation goes beyond nuts and bolts and trenches on policy. The second is an aspect of the latter. Noble Lords will want to be prepared—and certainly consider themselves free—to vote against subordinate legislation when the Joint Select Committee draws attention to one aspect, especially one which it finds to be an unusual or unexpected use of a delegated power.
§ I have an example which I believe I ought to give to your Lordships so that it will be seen that what I say is not theoretical. It occurred under the Child Support Act 1991 of unfortunate memory. That was found despite the warnings of your Lordships. Indeed, for all the warnings, it turned out most unfortunately for the citizens and, I dare add, for the Government. So great was the clamour of protest that the department rapidly brought in a modification; but it did so under a power to make transitional provision. The transitional provision was to alter some assessments which had already been made and taken legal effect under the main Act. Unsurprisingly, the Joint Select Committee referred to that as an unusual and unexpected use of the power. In fact, although dealing with the constitutional aspect, your Lordships did pass the regulations because they went some way towards mitigating the mischief which this House had anticipated when discussing the legislation.
§ In those circumstances, there is perhaps one more example and one which we considered during consideration of the deregulation Bill. I believe that there is a lacuna which was identified by the noble Lord, Lord Rodgers of Quarry Bank, last week. He moved an amendment to close it. However, your Lordships felt that the lacuna would be closed if the House accepted the Motion on the Order Paper today.
§ I do not believe that approving the Motion—and I hope your Lordships will do so—will create an open invitation to the House to trammel with every subordinate instrument that is present; on the contrary, it must be quite exceptional.
§ Moved to resolve, That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration.—(Lord Simon of Glaisdale.)
§ 5.13 p.m.
My Lords, I am sure that the whole House will be grateful to the noble and learned Lord, Lord Simon of Glaisdale, for, once again, not only giving us the occasion to consider the constitutional role of your Lordships' House but also for giving us what I know the whole House feels to be the very real pleasure of hearing the clarity of his exposition in such matters.
We are indeed fortunate that the House continues to take such an interest in procedural and constitutional matters. Although the arguments may sometimes seem 360 a little abstruse to outsiders, it seems to me that it is only the interest at the level shown by your Lordships that keeps our own constitutional machinery in good working order. For that reason alone, I welcome the initiative of the noble and learned Lord. I shall do my best to set out as clearly and as concisely as I am able my own views on the issue under discussion today, both as Leader of your Lordships' House and on behalf of Her Majesty's Government.
At the outset, I should say that I entirely accept the Motion of the noble and learned Lord. Indeed, during the previous debate, the noble and learned Lord gave us a bit of a trailer for what I would say. I am grateful to him for exciting additional interest in my speech. The House undoubtedly has a constitutional right to vote on any subordinate legislation. I do not believe that there is any doubt about that fact. Our position in that respect certainly remains as stated by my noble friend Lord Hesketh, who was then the Government Chief Whip, in a debate on 19th May 1993, to which the noble and learned Lord referred. My noble friend said:The power to do so certainly exists. It would be open to your Lordships to use that power".—[Official Report, 19/5/93; col. 1811.]Of course, I would in no way dare to disagree with my noble friend, especially on such matters.
Therefore, there is no question whatever of our opposing the Motion or, indeed, seeking to resist it. However, I should also like to remind your Lordships why the House has rarely chosen to exercise that freedom. I was most pleased to hear what the noble and learned Lord said in his concluding remarks. It seems to me that perhaps—as I had guessed—he and I are not all that far apart on the "buts" that I might introduce in the course of my remarks.
As noble Lords know better than I, this House has very broad powers; indeed, there are very few formal constraints. The manner in which the House chooses to exercise such powers is crucial. We all know that the proceedings of the House depend in large part on a foundation of agreement as to what is and what is not an appropriate course to pursue. The House could not function so effectively without such consensus—that is, without general agreement to observe the various conventions which regulate our activities. Those conventions range from the self-restraint which I know your Lordships always intend to observe in the length and frequency of speeches, to wider questions of what is procedurally or constitutionally appropriate. Moreover, it is always open to noble Lords to change their practices.
Of course, there are always exceptions, just as there clearly is an exception, as pointed out by the noble and learned Lord, Lord Simon of Glaisdale, over the number of terms that a president of the United States may serve. The convention in that country is clearly that no president may serve more than two terms. Indeed, that convention is still in force, despite the exceptions that the late President Roosevelt represents. Therefore, I wholly accept the example chosen by the noble and 361 learned Lord as being entirely appropriate for the purposes of today's debate. I see that the noble Lord, Lord McIntosh, wishes to intervene. I give way.
§ Lord McIntosh of Haringey
My Lords, I am much obliged. It was following the example of President Roosevelt in being elected for a third and, indeed, a fourth term that an amendment to the constitution of the United States was carried which formally limits the tenure of presidency to two terms.
My Lords, I thank the noble Lord, Lord McIntosh, for reminding me of that fact. Of course, that is perfectly true. But, as we all know, although it may be rather a long and cumbersome procedure, the constitution of the United States is open to amendment. Indeed, I can think of a number of occasions when that has taken place.
However, I do not wish to put too much weight on that particular piece of ice, except to say that I would counsel some caution as to the exercise of our unfettered right to vote. Most of our practices and conventions were developed for good reason and, I believe, serve the House well. They represent a great deal of accumulated wisdom which it would be rash for us to ignore.
One such convention is certainly what we are discussing today; namely, that although noble Lords have the right to do so, they do not vote directly on subordinate legislation. I know that the noble and learned Lord disputes whether that convention exists. However, in my view, there is some clear evidence to suggest that it does. If that is so, there would have to be a very powerful reason for discarding it. It does not, as someone suggested, suit the purposes of the government of the day, but is perhaps constructive for your Lordships' House as a whole. After all, this House is in large part a revising Chamber. Indeed, on re-reading the letter which my noble friend Lord Wakeham sent to the noble and learned Lord (to which the noble and learned Lord referred) I noticed that that was a point made by my predecessor.
It is up to us, and it is indeed another unfettered right which I have noticed has been exercised—very often to this Government's discomfiture—with some abandon in your Lordships' House of late, to cause another place to think again. Yet we and another place have identical powers in respect of subordinate legislation, simply to accept or reject. I would submit to your Lordships that this is a crude, inflexible power, at odds with our role as a revising Chamber. I suspect that the noble and learned Lord, Lord Simon, would agree with that, in view of what he said about the infrequency with which he anticipated this power should be used. Therefore it is clear that exercise of this crude power could result in stalemate between the two Houses with little scope for resolution.
That is why, instead of exercising the power which the House undoubtedly has, your Lordships have chosen rather to develop other means of making known your views on the subordinate legislation submitted for your consideration. The House has chosen to voice its opposition without making an outright challenge to another place, which in almost every case will have already debated the instruments before us. These other 362 means—there are many of them—have included Motions calling on the Government to make amendments to the legislation, or Motions to adjourn consideration of it. Your Lordships will be well aware, too, that time is always made available to debate a Motion or a Prayer on an instrument. The House therefore has more opportunity to debate instruments than does another place where they are usually taken in a committee and where Prayers are very rarely taken at all.
Some of your Lordships may suggest that the convention which we are discussing is a lately-grown one. Again I would draw the noble and learned Lord's attention to this. He implies that it does not exist at all and others have implied that this is a relatively recent development. However, I think I am right in saying that the only occasion since 1945 on which your Lordships; have voted down a statutory instrument was on that famous occasion on 18th June 1968. Already it was; clear that your Lordships were, at least arguably, breaking a long-standing habit—I use the word cautiously in view of the noble and learned Lord's strictures a little earlier. Indeed, the late Lord Wade, speaking for the Liberal Party, as it was then called, said,custom has rightly grown up that we in this House do not reject an Order".Since 1982 there has been no Division on a Motion to approve an affirmative instrument or on a Prayer to annul a negative instrument. In the 30 years preceding that I think I am right in saying that there were only about two dozen occasions on which such a Division was called. It therefore seems to me that your Lordships have for some time regarded this as an unusual step and chosen instead to seek other ways of recording your views. I suspect again, from what the noble and learned Lord said, that if we are not to use this power often, perhaps we are not as far apart—and indeed my predecessor and he were not as far apart—as we had feared.
§ Lord Renton
My Lords, I wonder whether my noble friend will give way. I express my apology for interrupting, but I think it would be of very great interest if he were able to tell us on how many of those two dozen occasions the government of the day were defeated. It is rather important to know that because sometimes there might be what one might call a maverick vote rather than a vote on which there were strong feelings across the House.
My Lords, as always I ought to tremble before giving way to my noble friend Lord Renton. My researches have been far too superficial to be able to answer that question, which I acknowledge is an important one, off the top of my head. I wonder whether he would allow me to answer it in writing and perhaps put a copy of the response in the Library of the House because it is an important point. I apologise for not being able to answer it off the top of my head.
The noble and learned Lord, Lord Simon of Glaisdale, described three classes of case, of which I am glad to say he has very kindly given me notice, in which he considered it appropriate that the convention might be 363 disregarded, and the House invited to vote outright on subordinate legislation. I have already today given a clear and unequivocal undertaking that the Government would not seek to pursue any deregulation order to which the House had expressed its opposition on a Motion on a report of the Delegated Powers Scrutiny Committee. I would submit therefore that there would be no need for your Lordships to vote against such an order. The Government also always attach great importance to the reports of the Joint Committee on Statutory Instruments. In particular we regard with the utmost seriousness any finding that an instrument constitutes what I believe is called "unexpected or improper use" of the powers delegated by the parent Act. Again, Henry VIII clauses make me all too well aware of how rusty I am on what I believe was the statute of proclamations of 1539 which gave rise to Henry VIII clauses in this context.
The noble and learned Lord's other class of case was where the order went beyond what the late lamented Bob Cryer called the "nuts and bolts" and raised a point of policy. The provisions of the parent Act would of course be crucial here. If they did not provide for such a use of the delegated power, then the order would no doubt be reported on by the Joint Committee as being ultra vires. If at the time the power was granted by primary legislation it was thought to be inappropriately wide, I am sure it is something to which the Delegated Powers Scrutiny Committee would draw your Lordships' attention. It seems to me that we are fortunate in having two such thorough watchdogs. I am pleased that in view of the substantial change that the deregulation Bill represents, such watchdogs have had, if anything, their powers enhanced as a result of the debate that we had a little earlier this afternoon.
I hope I have made clear the position of Her Majesty's Government. We of course acknowledge your Lordships' power to vote on subordinate legislation, but support the constructive way in which your Lordships have shown restraint in the exercise of that power. However, I believe that there is something else we ought to be aware of, and I hope that the noble and learned Lord can follow me here too. The existence of our unfettered right is not, in my view, otiose, even if we do not use it. The very existence of the power surely gives force to the other means which your Lordships have developed for expressing your views on subordinate legislation and so causes those views to be given full consideration should any unconstitutionally-minded government even think of not doing so. As I say, I am grateful to the noble and learned Lord for moving his Motion today. I am also grateful to him for moving it from last week when he originally proposed to raise this question because it seems to me that our business today fits naturally together as a result, particularly in view of the business which the noble Earl, Lord Russell, is about to raise in the House. We 364 do not always achieve such coherence as business managers and I particularly look forward to hearing the views of the House on this as on all other subjects.
§ 5.27 p.m.
§ Lord McIntosh of Haringey
My Lords, the House is of course, grateful to the noble and learned Lord, Lord Simon, for raising this important matter and for the way in which he did so; and indeed for his timing. We are also grateful to the noble Lord the Leader of the House for taking the opportunity to express the Government's views at the beginning of the debate rather than letting the debate take its course before replying to it. I am sure that was a wise decision.
This could be a trivial debate, an interesting debate, or it could be an important debate. It would be a trivial debate if we spent any time at all on the literal wording of the Motion to resolve. It is clear that the Motion to resolve is correct and that the House has an unfettered right to vote on any subordinate legislation submitted for its consideration. That, I suggest, is not the issue with which we should be concerned if we are concerned with the future procedures of this House. It would be an interesting debate, but possibly no more, if we were to spend a great deal of time considering the semantics of the word "convention". The noble Lord the Leader of the House has talked about conventions, but of course there are all sorts of levels of convention. There are conventions which find their way eventually into standing orders. There are conventions which find their way into the Companion to the Standing Orders; like, for example, the Addison Rules. There are conventions such as the Salisbury Rules which do not appear in the Companion but appear in learned texts expounding the meaning of the Companion and the ways in which this House operates. There are also conventions which have grown up without ever being written down and yet have, by virtue of their own coherence and plausibility, achieved the support of the House as a whole.
The Delegated Powers Scrutiny Committee referred to the convention on statutory instruments as being a weak convention. I do not know whether a weak convention is a category in itself or whether it is more or less than an understanding. I do not very much care. What is important is that we should move from this interesting, semantic discussion to consideration of the much more important issue of the need for and future of delegated legislation and what action this House should take if it is accepted that delegated legislation should continue.
Various committees which have been set up by your Lordships over the years have considered certain aspects of this question. The Donoughmore Committee of 1932 considered in detail Henry VIII provisions. That committee has had occasion to be referred to in debate on a number of occasions, mostly by the noble and learned Lord, Lord Simon of Glaisdale, but also by other noble Lords over the years as governments have attempted to impose Henry VIII legislation.
In 1973 the Brooke Committee considered the question of negative and affirmative resolutions and attempted to make some distinction as to the occasions on which one procedure should be adopted in preference 365 to another. The Renton Report of 1975—and we are delighted to have the noble Lord in his place and among the speakers today—considered what I believe to be the much more important issue of what should be contained in clauses, what should be in schedules and what it was permissible to include in delegated legislation. The report contained a great deal more, but for our purposes today that is the important issue.
Therefore, over a considerable period there has been consideration of what it is proper for Government to seek to put into subordinate legislation. I regret that in its report last year the Delegated Powers Scrutiny Committee felt unable to take that consideration further. I also regret that the committee found itself agreeing with the Government that the rights or wrongs should be considered case by case in each specific context.
I should have thought that as subordinate legislation grows —and there is no doubt that that is the case, and Bob Cryer's letter confirms what we all know—there is increasing need for proper consideration and analysis, and for the establishment of rules concerning what can and should be contained in subordinate legislation. That need has grown in recent years as a result of the degree to which European legislation needs to be considered by Parliament in subordinate legislation under the European Communities Act 1972 and subsequent European legislation. The need has increased further this year in view of the special provision which has had to be made for the deregulation Bill.
Therefore, there is no doubt that delegated legislation is a feature of government which will not go away. It deserves and needs to be analysed, categorised and considered carefully by this House if we are to take our responsibilities seriously.
Then we have to look not only at the degrees of delegated legislation but at the degrees of remedy. The extreme remedy is the remedy of rejection. It has been rightly said that that remedy has been adopted only in 1968 on the Orders in Council relating to Rhodesian sanctions. I cannot avoid saying from this Dispatch Box that we only come close to such rejection because we have a House which is fundamentally non-Labour, and indeed anti-Labour. It is, in fact, Conservative in its composition, although I am always contradicted when I say that. We come close to the point of rejection—not merely moving a Motion for rejection but having rejection carried—only when there is a Labour Government. Therefore there is a real party political issue to be considered here. It would be wrong for me to approach this matter without taking the view of the next Labour Government. The next Labour Government simply cannot afford the same degree of insouciance in relation to the powers of this House to deal with delegated legislation as a government which have very nearly, unless they make huge mistakes, a built-in majority in this House. There are other remedies which we shall have to take to deal with that built-in majority, and we shall use them. In the meantime, we have to consider the position of the House as presently constituted and our responsibilities.
One of those responsibilities relates to the issue of negative and affirmative resolutions. Again, I very much regret that the Delegated Powers Scrutiny Committee 366 agreed with the Government that there was; no finite rule as to what should be dealt with by affirmative resolution or by negative resolution. A great deal of the detailed consideration of legislation in this House in recent years has taken the form, failing other means of amendment, of debate on whether what the Government propose should be dealt with by means of negative resolution or should be subject to the affirmative resolution procedure. Any government will always resist increasing the pressure on the House by having a larger number of affirmative resolutions.
Yet at the same time, in our business over the period of a Session we find a large number of orders arising from earlier legislation which are subject to affirmative resolution but are never challenged. For example, paralytic shellfish regulations arise every year, but I do not believe that it can be said that those are matters of the highest political significance which deserve the prolonged attention of your Lordships.
§ Lord McIntosh of Haringey
My Lords, I suspect that the shellfish are past it by that time.
If we were systematically to remove from our statute book the requirement for earlier, unnecessary, affirmative resolutions would it not be possible for the Government to be a little more flexible in permitting subsequent affirmative resolutions? There would be no net increase in the burden on the House, and our political effectiveness would be increased.
The other issue with which we have to be concerned, and some noble Lords will be, is the power of amendment. I have heard the view expressed on all sides of the House that subordinate legislation should be capable of amendment in the same way as primary legislation. Those who have no prospect of participating in government will find that a very attractive argument. Those who do have a prospect of participating in government will never find it an attractive argument, because in effect it promotes secondary legislation to become primary legislation. We have too much legislation as it is, and to increase the amount of legislation tenfold (there are some 2,000 orders a year which might be capable of amendment) would be to destroy the effectiveness of this House, or of any legislature, as a revising body. Therefore, speaking on behalf of Her Majesty's Loyal Opposition, I am bound to say that the House cannot expect a Labour Government to permit amendments to subordinate legislation.
There are also degrees which may be used in expressing opposition. The noble Earl, Lord Russell, is very skilled in finagling those degrees. He finds new words each time he puts down a notice of Motion for saying, in effect, that while the House will not overturn regulations it will very nearly do so and the Government are dreadful if they persist regardless. On occasions his Motions have been carried and the Government have ignored them. The wording does not matter. The point is that unless one actually overturns the Motion, then expressions of disapproval are no more than just that: 367 expressions of disapproval. They are not binding on the Government. It will be interesting to see what happens on the Motion of the noble Lord, Lord Meston.
This House must continue to preserve the unfettered right. However, the use of that unfettered right must be a last resort. From the point of view of the House as a revising Chamber, it is far preferable that we use all our influence on the Government to control the amount and type of delegation in legislation, the extent to which Ministers are able to use that right to extend policy rather than to implement relatively minor changes in existing policies which have been approved by Parliament, and to a lesser extent the degree to which this House has the ability to express its views on that subordinate legislation. However, above all the issue is the control of delegation.
§ 5.41 p.m.
§ Lord Rodgers of Quarry Bank
My Lords, this is the third of the important debates initiated by the noble and learned Lord, Lord Simon of Glaisdale. We are greatly indebted to him again.
Perhaps I may describe what I believe to be the common aim of the debates. It is not so much to define the frontier of the powers of the House (that is established by statute) but to explore the no man's land—which is the way in which I describe the significance of convention—and (in the words of the noble and learned Lord today and on previous occasions, and my understanding of the issue) to narrow that ground.
I have been disturbed by the remarks of the noble Viscount the Lord Privy Seal and the noble Lord, Lord McIntosh of Haringey. The noble Viscount the Lord Privy Seal was very careful indeed in saying what I believe to have been obvious from the beginning: that the Government accepted the Motion. They never had any choice whatsoever. But he then introduced an important "however" which we all know is an indication of a change of direction. He referred to accumulated wisdom. He stated that it would be rash to ignore past views. Indeed, he reasserted the use of convention in such a way as to negative the approval of the Motion which he had indicated in advance.
I was also bothered by the remarks of the noble Lord, Lord McIntosh of Haringey. He said that it was trivial to spend time on the Motion. I do not believe that it is. I believe that the content of the Motion is important, as the noble and learned Lord, Lord Simon of Glaisdale, indicated is the case. However, the noble Lord, Lord McIntosh, then used what I considered—I hope that he will forgive my using this word—a slightly menacing approach to the issue of subordinate legislation: that this House cannot expect a Labour Government to permit amendments to subordinate legislation. That may be a statement of fact; we must wait and see. But the very tone in which the view was expressed suggests to me that we cannot expect any change of direction from a Labour Government. With regard to the House today, 368 and to the extent to which subordinate legislation will take the place of primary legislation, that concern will not be diminished by any change on the Front Bench.
§ Lord McIntosh of Haringey
My Lords, the noble Lord has had the privilege, which I have not had, of serving in a Labour Government. When he was a member of a Labour Government, did he urge at any time that there should be the power to amend subordinate legislation?
§ Lord Rodgers of Quarry Bank
My Lords, I do not believe that I did because at that time, as has been stated many times in this House, subordinate legislation was not the considerable consideration that it is today. Further, I was not a Member of this House; and we are debating the procedures of this House today. I rest my point there. I simply say that it is the role of this House always to scrutinise the intentions of government and to carry out its proper role within the constitution, irrespective of the government in power.
However, I agree with the noble Lord, Lord McIntosh, when he referred in passing to the inhibition that we all feel. There is a certain inhibition within the House: that it is not seen to be legitimate; it is not accountable. In the debate of 19th May 1993 the noble Lord, Lord Renton, stated:There is no great clamour for revision of the composition of your Lordships' House".—[Official Report, 19/5/93; col. 1794.]I have to say that I rather agree with him. Although it is not for me to say, I believe that it would be a mistake for any government to make the reform of the House of Lords the centrepiece of the first parliamentary Session. There is a great case for reform of our constitution, of which reform of this House should be part. But there cannot simply be a change to the composition of the House when we have so many urgent and important problems concerning poverty, unemployment, health, education and homelessness. The idea that we should be close to the people by taking up the first Session of Parliament on reform of this House—perhaps I may speak in a personal capacity—I believe is nonsense.
Indeed, I add—the view may be unpopular—that while the rational case is overwhelming on a democratic ground, if we are to restrict or get rid of the power of the hereditary peerage, those of us who are Life Peers must also look at our position. Life Peers are the product of arbitrary decisions. That does not enable us easily to claim a distinction which the hereditary element in this House does not possess. When reform of the composition of the House arises, I hope that attention will be paid to the question of how Life Peers are chosen and not only the situation regarding hereditary Peers.
I should like to see a reform of this House which more accurately reflected the composition of the electorate as indicated at general elections. Indeed, if the House contained 33 per cent. Conservative voting Peers, 27 per cent. Labour voting Peers and 15 per cent. Liberal Democrat voting Peers, and if other parties were represented by a group of 15 per cent., it would leave 22 per cent. for the Cross Benches, who could represent those people who do not vote at general elections. I 369 leave those thoughts with your Lordships' House as a rather neat way, I believe not previously canvassed, in which the problem of composition could be solved.
§ Lord Monkswell
My Lords, perhaps the noble Lord will give way. Dots he suggest that future Members of the House of Lords should vote in terms of the way that their party or non-party dictates rather than from their own knowledge, wisdom and experience and from having listened to the debate?
§ Lord Rodgers of Quarry Bank
My Lords, I neither said that, thought that, nor implied it. I simply speculated on how it might be possible in a simple way to solve some of the problems of composition which I believe inhibit the House in using its powers to the full. I believe that that has to be said. In the back of the minds of us all is the extent to which there is an illegitimacy in the second Chamber which means that, whatever our powers, there must be further conventions restraining our behaviour.
I even have some reservations about the Salisbury doctrine, of which the House as a whole seems to approve—at least as it was defined by the noble and learned Lord, Lord Simon of Glaisdale, in the debate of 19th May of last year. As I understand it, it suggests that Bills foreshadowed in an election manifesto are not Bills that the House should vote against. However, people vote in general elections despite manifestos and not because of them. Some of the worst Bills in my knowledge have been those included in manifestos— and some of the better ones were those thought up by governments thereafter. So to that extent I think that I must be a distant voice.
Perhaps I may come now to the main substance of the debate. I go back to what was said in the debate on the Deregulation and Contracting Out Bill on Tuesday of last week by the noble Lord, Lord Henley. It was that text that I had in mind when I heard what the noble Viscount said today. In the circumstances which were described by the noble and learned Lord, Lord Simon, the noble Lord, Lord Henley, said in the course of the debate that the Government would be accepting the Motion before them but he then continued:I think most parts of the House would accept that there is a convention against this House voting against subordinate legislation".—[Official Report, 11/KV94; col. 867.]He then referred further to the convention,which has been respected for some time by this House".Thus I say again that I think that the remarks of the Lord Privy Seal were hedged around in a way which at least causes me concern and takes the edge off my welcome to the approval that the Government have given to the Motion.
Perhaps I may refer briefly to two occasions concerning secondary legislation which are examples of what I think the House should be anxious about. I understand that a Statement is likely to be made in the House about the future of local government reorganisation in England. I do not know its terms, but I would not be at all surprised if the House were told that the Government had wisely, and in response to what has been said in this place, decided to abandon the larger part of that reorganisation for an indefinite period.
370 However, at the same time, we may well be told that statutory instruments will come before the House with respect to certain parts of the United Kingdom. As noble Lords will recall, we have spent a great deal of rime discussing reorganisation in Scotland and Wales on the basis of primary legislation. But is it not strange that, having discussed Scotland and Wales on the basis of primary legislation, when it comes to England we are not allowed to amend any of the proposals or seek to amend any of the proposals put before the House? That gives me cause to wonder whether in those circumstances we should exercise restraint and not be prepared to vote against subordinate legislation in the form of statutory instruments unless we are going to place consideration of England well below consideration of what is proper in Scotland and Wales.
Again, I have seen a letter which I take for granted must be public property from the then Government Chief Whip to the Chief Whip of the main Opposition party dated 7th November 1991. It states:We are all agreed that we disliked procedural rows on the floor of the House, and that we would stick to the understanding that notice would be given before the Whip went out each Thursday, of any intention to divide on any motion relating to subordinate legislation in the following week".If any attempt were made from the Back Benches to divide on a Motion,the front benches would indicate to the House that they could not support the intention to divide in such a way".I said that that letter causes me concern because, not only is it the custom of the House, but it is surely part of our role in debating amendments to hear what is said from the Government Front Bench. There are times when assurances are given which are accepted by those seeking to move amendments. At other times the House is called to a Division. But it now appears that the understanding between the two Front Benches is that the House should not be free to exercise its judgment about whether to vote on a statutory instrument in the light of the discussion which has taken place, or if, indeed, Back-Benchers have in mind to do so, they will be discouraged from doing so on the grounds that the previous week it had not been indicated to be the intention of Members of this House to divide.
§ Lord McIntosh of Haringey
My Lords, the noble Lord makes assertions about what has been agreed between the two Front Benches. I have had the opportunity of looking at that letter, but the phrase which the noble Lord, Lord Hesketh, used meant, I think we are all agreed, that it was agreed with the Liberal Democrats, or whatever they were called at that time, as well as the two Front Benches.
§ Lord Rodgers of Quarry Bank
My Lords, I am sure that it was agreed between the Chief Whips, although the letter was exchanged between the Government Chief Whip and the Chief Opposition Whip. I speak if need be in a personal capacity. But I have to say that I believe that all Members of this House must be wary about anything which restricts their power of scrutiny. I cannot dispute an understanding which may have been reached, but surely I have the right—I hope all Members of the House have the right—to express concern. I do so. I took it for granted that the 371 letter was in the public domain and referred to it because I think it strengthens the view that the House should be concerned about the way in which we deal with subordinate legislation.
We shall bring this debate to a conclusion later this evening. Notwithstanding what was said by the Lord Privy Seal—which was a re-statement of what I understood to be the historic, if not the conventional, position—I greatly welcome the Motion and the speech of the noble and learned Lord, Lord Simon of Glaisdale, as an antidote to the view expressed by the Lord Privy Seal and the view held by both Front Benches and all governments in power.
I was asked by the noble Lord, Lord McIntosh, what my position would have been in government. Those of us who have served in government have sometimes made mistakes. That is why it is good to change a government from time to time, because there is a vanity of power, an arrogance which comes from wanting to get your own way and trying to persuade Parliament against its judgment to do things which the Government would find convenient. Whether or not we have been fortunate enough to be in government, we must speak our minds. My mind is to assert the power of Parliament against the Executive, whoever that Executive may be.
§ 5.57 p.m.
§ Lord Renton
My Lords, my noble friend the Lord Privy Seal, with his usual courtesy, has passed me a note saying that, alas, he has to go to an important meeting at 6 o'clock.
Perhaps I may first say that I do not agree with the noble Lord, Lord Rodgers of Quarry Bank, in his interpretation of what was said by my noble friend this evening, who I thought made an open-minded speech in which he reaffirmed your Lordships' constitutional right and power to vote against subordinate legislation, if we think it right to do so. I shall give one or two reasons why I think that this power is one which we should not hesitate to use.
The noble Lord, Lord Rodgers, mentioned a very important power which may come up in the next Session and that is on the question of orders made in relation to local government in England. To me, it is unthinkable that we should not vote against those orders if we think it right to do so.
The noble and learned Lord, Lord Simon of Glaisdale—who, alas, is not in his place at the moment—has done an important service in raising the matter and has given rise to a debate which, so far, has been very interesting indeed and wide-ranging. He said that the practice—I do not think that one should call it a convention; I agree with the noble Lord, Lord McIntosh, when he said that we must be careful of the semantics. The word "convention" generally means something much stronger than the mere practice of restraint which your Lordships have exercised with regard to subordinate legislation and not voting on it. The noble and learned Lord, Lord Simon, said that the practice had existed for only 10 years. I have been a Member of your Lordships' House for 15 years and during that time, within my recollection there has certainly not been any 372 vote against subordinate legislation. The restraint therefore goes back as far as 15 years. But I hope that in future we shall exercise our constitutional responsibility to a greater extent. We are free on all primary legislation, except Finance Bills, to amend it. It is an absurd anomaly that we can ask the Government and Members of another place to think again on amendments to primary legislation but not do so, when we feel it right and necessary, on secondary legislation.
I have to tell noble Lords, having spent 34 years in another place before I came here, that on some secondary legislation, as well as the primary legislation under which it is made, we are better qualified to pass judgment than are Members of another place. On some matters there are many noble Lords who have knowledge, expertise and experience that cannot be found in another place. I think particularly of judicial matters, defence and forestry; and I feel bound to say, because of the splendid work that is done by our European Communities Committee, that there is a depth of understanding among many of your Lordships on European affairs which just does not prevail in another place. That is in itself a very strong reason why we should be prepared to vote on secondary legislation when we feel it is right to do so.
Another reason why we should be free to consider it and vote upon it is—and I speak here from experience— that when it comes to considering either a negative resolution or an affirmative resolution in another place, it is generally listed at the end of the day's business— that is, after 10 o'clock, when most Members have gone home and the House is almost empty. For that reason, the contents of the secondary legislation and whether it should be passed are largely ignored. I really feel that because we have more time to consider it, and a greater opportunity to do so, as well as, as I said, perhaps greater skill in doing so, then we should use that power.
Reference has already been made to two important recent developments which I believe increase the need to use that power when we think it right. There is the question of the Scrutiny Committee alerting us to the use of Henry VIII clauses in primary legislation at an early stage when Bills have just come before the House. Now another situation will arise under the Deregulation and Contracting Out Bill: we are bound to have orders put before us which will require very careful consideration because they will amend primary legislation. We may be against those orders; we may think that they are wrong in principle and that they raise fresh questions of policy—it is not just a question of "the nuts and bolts", as the noble and learned Lord, Lord Simon of Glaisdale, rightly said, that arise when we consider secondary legislation; it can and does raise questions of policy from time to time. I mentioned a third reason earlier in answer to the noble Lord, Lord Rodgers of Quarry Bank; namely, the question of local government reform in England. Those are three strong reasons.
The noble Lord, Lord Rodgers, tempted me to follow up what he was saying by going into a further discussion on the Constitution. But I would just say this: thank goodness we do not have a written constitution! We have an ever-changing Constitution. We let it evolve.
373 We are not rash and quick to change it. But when new circumstances arise that require us to change it, then we do not hesitate to do so after careful consideration. We are now in a situation when we should evolve in the way that is suggested by the noble and learned Lord.
Finally, I feel bound to say—it was hinted at by the noble and learned Lord, Lord Simon of Glaisdale, and by my noble friend the Lord Privy Seal—that, when we do vote against subordinate legislation, I am quite confident in my own mind that your Lordships will do so responsibly. I hope and believe that people will not regard it as just part of the Party game. That is not how we operate in this House—thank goodness! The Government will be fortified when they win a vote in favour of subordinate legislation. Therefore I would not have thought that they would object very strongly to a vote, if they are fairly confident that it is right. It is only if, across the House, there is a strong feeling that the Government and the House of Commons should be asked to think again that we should on quite rare occasions vote against it.
Those are my reasons. Before I sit down—I did say that was the final point and it was certainly my main point—perhaps I may just refer to a kind reference that was made by the noble Lord, Lord McIntosh of Haringey, about the committee of which I had the honour to be chairman. I am glad to say that another member of that committee is about to follow me at once; namely, the noble Lord, Lord Henderson of Brompton. I have not in recent weeks or even months discussed this matter with him, but I am sure he will bear me out when I say that we were very careful to advise Parliament as to what should go into clauses, and advised that the broad intentions of Parliament should be clearly stated in Bills, whether or not there had to be detail in the legislation. We suggested that the detail should go largely into schedules.
It is now many years since the committee sat; but when we were sitting, we had not reached the stage in the evolution of our parliamentary affairs that we have now reached, so we did not make any particular reference to the question of what should go into statutory instruments. We were certainly against Henry VIII clauses; that was pretty clear. But taking it in the broad, I believe that we now have to resolve in our own minds that we have a constitutional power to use and when necessary, we should not hesitate to use it—and no government need be afraid.
§ 6.9 p.m.
§ Lord Henderson of Brompton
My Lords, it is a great pleasure for me to follow the noble Lord, Lord Renton, under whose chairmanship I sat on the committee that bears his name and which reached unanimous conclusions under his guidance. I am very glad to acknowledge that that was so. I differ from the noble Lord, Lord Renton, on only one of the points that he made; namely, that he hoped that in future the House would resort more frequently than it has in the past to direct opposition to subordinate legislation issuing from the Government. I shall explain why I think so and give one particular reason.
374 Before so doing, I want to say that, like so many other Members of this House, I am very happy indeed to accede to the Motion of the noble and learned Lord, Lord Simon of Glaisdale. He has done the House a service to emphasise that we are not in fact constrained except by—I shall not say "convention"—the practice of the House and what I shall call general political caution or the exigencies of politics from doing so, except as a last resort. To that extent I am in entire agreement with the noble and learned Lord, Lord Simon of Glaisdale.
I take the same view as the noble Viscount the Lord Privy Seal, the Leader of the House, whose speech I thought admirably and impartially reflected the practice of the House in this regard. That practice goes back a very long period of time. It should not lightly be disregarded.
I come to the particular point that I wish to make. If the House votes successfully against an order, whether it be an affirmative or negative instrument, it puts an unnatural constraint on the Government. By the "Same question same Session" rule, they cannot reintroduce the same Motion after it has been rejected without breaching that fundamental parliamentary rule. Perhaps I may quote from Erskine May as to what that rule is:A Motion or Amendment may not be brought forward which is the same in substance as a question which has been decided in the affirmative or negative during the current Session".As I said, that is a fundamental rule.
It would be absurd if one House or the other voted against the Second Reading of a Bill and the Government came back the next day and voted for it. It stands to reason that that is something which we must respect. If we vote against subordinate legislation, whether it is affirmative or negative, we put the Government into a very difficult situation. Either they have to amend it, in which case they can bring in an amending order because that is not the same question, or they can be obstinate and lose their business for the Session, which is a very serious matter for the Government, depending on the importance of the subordinate legislation.
In my opinion, no government of whatever complexion would be prepared to lose their business for the remainder of the Session. So they find themselves in the position of having to breach the "Same question same Session" rule. We should not put the Government into that position.
The locus classicus is the Southern Rhodesia (United Nations) (Sanctions) Order 1968. That was an order of the highest importance. It was a matter on which the Government had committed themselves; namely, to implement the United Nations sanctions order. They could not conceivably have let it slide for the remainder of the Session; nor could they amend it. They had only one alternative, which was to table a Motion which rescinded the previous order. In doing so, they broke the "Same question same Session" rule.
I submit that we do not want to tamper with the fundamental proceedings of Parliament in this way and should not do so except in extreme emergencies and as a last resort. I certainly believe that it is a position that the House should be entitled to take as a last resort but 375 not otherwise. I myself cannot believe that, on reflection, anybody would wish to place the Government in a straitjacket of that kind. It cannot be right that they should lose their business for a Session in subordinate legislation whereas they cannot lose their business, all things being equal, in main legislation.
For that reason alone I suggest that the convention or practice of the House, whatever we may agree to call it, should be scrupulously observed. For instance, the Motion by the noble Earl, Lord Russell, to be discussed later this evening should be preferred to the Motion by the noble Lord, Lord Meston. The one is acceptable to our way of proceeding and the other is not. I hope that, if there is to be a Division, it will be on the Motion of the noble Earl, Lord Russell.
As to what should happen in the future, that convention or practice has stood the test of time. On many occasions it has allowed proper debate on an expression of opinion which does not wreck the subordinate legislation and in many cases it has averted a clash between the two Houses. Political consideration was quite rightly introduced by the noble Lord, Lord McIntosh of Haringey. Without that note of realism, this debate would have been floating in the air. He brought us down to the ground and it really matters.
In order to preserve comity—that is a word used by the noble and learned Lord, Lord Simon of Glaisdale— between the two Houses, we should endeavour to uphold this convention. It is a very elastic convention. Each Motion falling short of absolute reversal of the Government's proposal can be tailored to the occasion, as has been done. It has been a kind of safeguard or letting-off of steam, which has allowed expression of opinion without fear of confrontation between the two Houses and between this House and the Government.
For that reason I very much hope that a Motion directly opposing subordinate legislation should be eschewed except as a last resort.
§ 6.17 p.m.
§ Lord Monkswell
My Lords, it is always a great pleasure to follow the noble Lord, Lord Henderson of Brompton. He brings very wise counsel to your Lordships' House. I thank the noble and learned Lord, Lord Simon of Glaisdale, for introducing this subject and giving us the opportunity to debate it. We have the opportunity to state the rules as they pertain today. It gives us the opportunity to reflect on the origins and history of those rules and on the current situation and allows us to give some advice as to what might happen in the future.
It may be useful to reflect on the basis of why we are here at all. We are all summoned to give our advice to Her Majesty on the arduous affairs of state. I paraphrase the Writ of Summons. I am sure we all recognise what it means. We give that advice individually, as individual Members speaking our minds, and we also give it collectively, either through our Front Bench spokesmen or by going through the Division Lobbies and standing on one side of the Question or the other.
376 The noble and learned Lord, Lord Simon, is right. This House does have the right to divide on statutory instruments, which effectively, is what we are talking about. But what is the purpose of that? Over the years in the development of our parliamentary system there have been shifts of power; first, from the divine right of kings to the land and property of feudal barons; and, more recently, from effectively the House of Lords to the House of Commons. That reflects the value our current society places on the importance of each and every individual member of society through the democratic process of elections to the House of Commons.
Our situation is rather like that of a family and I suggest that it is wrong for us, as the elders of the family, to seek to dictate to our younger family members. But we have a duty to provide wise advice. While we retain the right to provide our advice in the strongest terms—by dividing the House and trooping through the Lobbies as I mentioned earlier—surely it is far better, and our advice will be taken much more seriously, if it is uttered softly with no hint of threat.
When I came into this House I wanted my individual advice on the Prevention of Terrorism Act to be heard; I felt strongly as an individual that the Act was wrong and ought not to be renewed. I felt that the way to achieve that was to cause a Division in this House against the renewal of the Act. But year after year when I tried to cause a Division I did not even find a seconder. It is curious to think that when someone in your Lordships' Chamber asserted the right to divide the House and give Members the opportunity to vote on the issue—some Members were in favour of the Prevention of Terrorism Act and did not want to vote against it— those Members of your Lordships' House (younger, dare I say?) who could see the evils of the Act felt that it was more important to abide by the convention that we do not divide. I suppose over the years I have listened to the counsels of my colleagues and now realise that my advice may be better received by reasoned argument than by shouting, screaming, forcing Divisions and trooping through the Lobbies.
We would do well to ponder that point. Our advice is important. The noble Lord, Lord Renton, mentioned the whole range of qualities that individual Members of this House bring to it—the expertise, the knowledge, the background, the understanding. It would be a pity if that expertise and advice were denied the Government because it was offered in the wrong way.
Other factors come into this debate and the noble Lord, Lord Henderson of Brompton, was right when he referred to the contribution made by my noble friend Lord McIntosh of Haringey. He injected into the debate an important note of political realism. It is worth reflecting on why we have subordinate legislation; why we have these statutory instruments—the 2,000 a year that come before both Houses of Parliament. One reason is because progressive governments who want to change things are faced with a conservative House of Lords and that conservative House of Lords has sought over the years to deny progress; to prevent governments moving society forward and reflecting the needs of modern society.
377 Parliament has therefore evolved a mechanism of enabling legislation. We give power to Ministers and circumscribe that power around by statutory instrument. We say in legislation that a Minister may do something subject to affirmative resolution or negative procedure. But the reason for those powers being used in that way is because of the conservatism of this House. We must be careful in the way that we use our powers. We must not persuade Members of the House of Commons and the Government of the day that was democratically elected to say that we cannot cope with the conservative element within our legislature that is holding us back, preventing the progress that our people need and therefore to take the powers that we have away from us. I would counsel therefore that we should seek to use our ability to advise the Government of the day rather than dictate to it.
§ 6.25 p.m.
§ Lord Mottistone
My Lords, it is always interesting to follow the noble Lord, Lord Monkswell. I must say that I liked much of what he said. He was saying that as we stay longer in this place we learn more about how we can contribute effectively. I agree with him strongly on that. I certainly have experienced that. But then he came on to the fact that the Conservatives, as he saw it, were stopping all progress and I do not believe that that is at all right. It is nothing to do with the debate, but the amount of progress we have made over the past 10 or 15 years has been staggering. It may not be progress he wants.
§ Lord Mottistone
My Lords, I shall not give way because we all want to get on with the debate. I strongly support the Motion and thank the mover for tabling and moving it. Much has been said about how important it is. Indeed, I am most reassured by the reaction of my noble friend the Lord Privy Seal that there is no question of the freedom to vote being taken away from your Lordships.
I should like to spend a few minutes following up the point raised by the noble Lord, Lord McIntosh, regarding the need to study how secondary legislation should be handled in the future. I have no quarrel with how affirmative orders are handled as such. I have no quarrel with the majority of the negative orders laid and no quarrel with the need for Peers to be ever more vigilant over not missing any that should be prayed against. Indeed, I have no quarrel with the time being given to me, at appropriate times of day, whenever I wish to pray against an order so as to publicise my disquiet at it. I just hope that that situation continues into the foreseeable future.
My problem—I believe it is "our" problem—is that secondary legislation is constantly increasing, and that trend could be incompatible with the steps that may be taken to reduce the formal activities of both Houses of Parliament. My concern with secondary legislation therefore is not so much how it is handled, but the fact that we cannot amend it. Sometimes Ministers are helpful and circulate draft orders before they are laid. They may make some amendments as a result of 378 subsequent suggestions and then lay another order. That is most helpful. But the initiative is with the Government.
As my noble friend Lord Renton suggested, in the report to the House that we have been debating and in HL Paper 83 which we shall be debating later, there are the beginnings of a suggestion as to how we may incorporate amending secondary legislation in the arrangements for the procedures that are to be introduced by the deregulation orders, as discussed on the Motion earlier today. Perhaps the procedures for informal committees off the Floor of the House, as outlined in paragraphs 8 to 17 of HL Paper 83, are going in the direction of making it possible for the relevant legislation to which they refer being handled off the Floor of the House but with the right of all Peers, if they so wish, to attend. Suitably adapted, one or both of those procedures might be changed and adopted for affirmative orders whenever requested by any Lord. If there is no request for handling in that special way, there is no point in wasting the time to do it. Very nearly all of the negative orders go through without question and the affirmative ones go through very readily. If that works with affirmative orders, we could consider a similar approach for those negative orders against which noble Lords wish to pray.
I strongly believe that changes of this nature should be gradual and experimented with first, and should always safeguard the basic rights of all noble Lords to debate all the matters that come formally before the House, whether in the Chamber or whether in committee rooms outside. If those safeguards are incorporated we could come to an arrangement by which we could have amendments, when needed, to secondary legislation without waiting for Ministers to be kind enough to give us draft orders in advance.
I hope that there will be such progress through these various committees. I am heartened by their looking at these matters. In the meantime, I trust that the House will accept the Motion.
§ 6.32 p.m.
§ Lord Shaughnessy
My Lords, your Lordships have indulged in a long session in introspective self-examination this afternoon and I do not propose to prolong that except for a very brief comment indeed. I should state, at the outset, that I do not speak as a member of either the Joint Committee on Statutory Instruments or your Lordships' Committee on the Scrutiny of Delegated Legislation but in a wholly private capacity, so to speak. I join with other noble Lords in thanking my noble and learned friend Lord Simon of Glaisdale and congratulating him on moving this Motion today. We all know that he is a vigilant guardian and a protector of the rights of Parliament and, if I may say so, in particular, the rights of your Lordships' House. He has brought to our attention on countless occasions the importance of this House properly examining and handling subordinate legislation. We are all grateful to him for his assiduous attention to this subject.
379 I really have nothing additional to add to the comments made by previous noble Lords on this subject. I wholeheartedly support the Motion moved by my noble and learned friend. Your Lordships should continue to be ever vigilant in the examination of delegated legislation and have no hesitation in properly exercising your powers in that respect. But, equally, I also believe, in agreement with my noble friend Lord Henderson of Brompton, that in the interests of good and also efficient government we should do so with a suitable degree of discretion and restraint. If we were not to exercise an appropriate duty of care your Lordships' reputation in this respect would be badly diminished. This House has been for a great many years, and continues to be, a bulwark against the exercise of excessive political authority. We need only look above us in this Chamber at the statues of 16 Peers and two Archbishops who prevailed upon King John to sign the Magna Carta, to realise how long this has been going on and to reinforce our determination to keep on doing our job in a prudent manner.
§ 6.37 p.m.
§ Lord Harding of Petherton
My Lords, I put down my name to speak to this Motion under a misapprehension that the procedure of the House would in practice prevent it from voting on deregulation orders under the terms of the Deregulation and Contracting Out Bill. I only read the report of the Select Committee on Procedure, published on 23rd May, just before the debate and realised that I was out of date. I am satisfied—I hope I am right to be satisfied—by the remarks of the Lord Privy Seal today that this House will have both the right and, equally important, the means to be able to debate and vote on deregulation orders. I am very grateful to the noble and learned Lord, Lord Simon of Glaisdale, for moving the Motion as I support it absolutely.
On the powers and composition of the House, I should like to take issue with the noble Lord, Lord McIntosh of Haringey, who is not in his place at the moment. I do not know the facts and figures but I think that the House of Lords has given much more trouble to Conservative Governments, especially recently, than ever it has to Labour Governments.
§ 6.39 p.m.
§ Earl Russell
My Lords, I too should like to thank the noble and learned Lord, Lord Simon of Glaisdale, for introducing this Motion. If it is true, as I think it is, that the price of liberty is eternal vigilance, the vigilance of the noble and learned Lord is one of those for which we have most cause to be grateful. We have also heard two speeches of quite exceptional quality, from the noble Lord, Lord Renton, and the noble Lord, Lord Henderson of Brompton, each of them putting, I think as well as it can be done, the case on either side of the Motion.
My case for supporting this Motion is, in its essence, very simple. Parliament makes the law: regulations have the force of law. Therefore we must have the right to consent to regulation. The right to consent must include 380 the right to dissent. We do not want to have a formula like the famous conge d'èlive issued by King Henry II to the Dean and Chapter of Winchester: "We order you to hold a free election. Nevertheless, we order you not to elect anyone save Richard, our Clerk Arch-deacon of Poitiers". That is not what we in this House understand by consent.
I was most grateful to the noble Lord the Lord Privy Seal for his recognition that the power exists. So with that recognition we are now debating the wisdom of exercising that power and it is to that point that I shall address my remarks.
I do not agree with the noble Lord, Lord Henderson of Brompton, that the convention we are discussing has stood the test of time. Even during the short time that I have been here—which, in the history of this House, is a very short time indeed—I have seen time wasting away some of the props of that convention. When I first arrived here I used to be told, usually by the Department of Social Security, that regulation was for minor matters.
Conventions are interlocking things. I had been going to say that convention was a two-way street, but I believe that that is a gross understatement. I believe that in fact convention is a roundabout and one person neglecting the rule of the road can make the whole lot break down.
The big change here, as I know the noble Lord, Lord Henderson, agrees, is the increasing press of business. It is that increasing press of business even more than the arrogance of power which is making governments use regulation for matters which cannot by any stretch of the imagination be described as minor. If I were to make a list of 100 measures introduced since I have been here to which I have found it most difficult to consent, I believe that something like 20 per cent. of those would turn out to be matters which have been introduced by regulation. If I were to make a list of the 10 measures to which I have found it most difficult to consent, at least one of those has been introduced by regulation.
When regulation is used for matters of major political controversy of this sort it becomes increasingly difficult to sustain a convention that we consent to these things without voting on them. I too should like to join in the welcome to the Lord Privy Seal who is, I believe, the fifth member of his family to hold this position. I should like to draw his attention to a remark made in this House in 1610 by Robert Cecil, the first Earl of Salisbury and also the first Viscount Cranborne: "When the King extendeth his uttermost authority he loseth his power".
So, as regulation comes to be used for more and more important matters, any convention of not voting against it becomes more difficult to observe. I listened with great care, and a large measure of agreement, to what the noble Lord, Lord Henderson, said about the use of the Motion to Resolve which, after all, is a procedure which I hope to use in a few minutes. That has the very great advantage that it need not preclude the reintroduction of the business in an amended form during that Session. I give that very great weight but again we are on a roundabout.
I would find the argument of the noble Lord, Lord Henderson, more persuasive if the Government had taken any action in response to the Motion which he 381 himself moved and carried in this Chamber on 6th July 1992 about a premium for those in bed-and-breakfast accommodation. That was an important issue. Since I am making a critical remark I should like to say that, on the other hand, I want to express great gratitude to Mr. Alistair Burt for the care and courtesy with which he has listened to arguments on this matter. He is a Minister of great quality. But in the last resort care and courtesy is not a substitute for actual change and of that we have, as yet, had none.
That is the sort of thing which makes the use of the convention of the Motion to Resolve rather more difficult than it need otherwise have been. Were that not to be the case, I should be very glad indeed. I do not know what it is going to be. The noble Lord the Lord Privy Seal said that the power to vote down a regulation was a crude power. I agree with him and I regret it. But that is in the nature of the concept of regulation itself. Whatever the noble Lord, Lord McIntosh of Haringey, may say, I do not believe that it is just the attitude of a future Labour Government that stands between this House and amending regulations. It is, as my noble friend Lord Tordoff put it, talking to me earlier this afternoon, the nature of the beast.
It is of the essence of a regulation to be unamendable. So if one believes that a regulation should be amended, it is essential that discussion should begin in private and confidentially well before the regulation reaches the Floor of the House. Here again I am back with the point that convention is at roundabout. If we are not to vote down regulations, then it must be possible to discuss the chance of changing such regulations many weeks before that actually occurs on the Floor of the Chamber. There would have to be give and take on that.
The other point is that we are concerned about the acceptability of what we do in the world outside. The ultimate nightmare of another place for many years when it voted taxes, has been that "they will not pay in the country what we give". Similarly, it should be a nightmare here that some day they may not accept the laws that we pass. Respect for the law is not as strong as it was. I regret that. When we think of respect for the law we should understand that in this country there is an indissoluble association between voting and consent and it is quite right mat there should be. So if a major, controversial piece of policy is introduced here in a form which we feel we cannot vote on, then it is harder for the world outside to consent to it. That is a very great pity and it is a conclusion which all of us should seek to avoid.
The noble Lord, Lord McIntosh of Haringey, told us that we are not going to get away with doing this sort of thing under a Labour Government. He reminded me a little of John Lilburn in 1646 saying, "My Lords, when you unhorsed the King you intended only that you should mount us and ride us in his stead". I say to the noble Lord that there is one remedy available to any government which cannot get their business through this House. That remedy is the creation of Peers. If a Government of which the noble Lord is a member does not use that remedy, then that is their responsibility and not ours. I hope that I shall not need to say that again.
382 The question of reintroduction in the same Session was one on which the noble Lord, Lord Henderson, had a great deal to say. What exactly is a reintroduction and what is an introduction of a slightly different measure, is a point on which there is room for debate. I would hope very strongly that in cases such as the Southern Rhodesia Sanctions Order, where there is clearly urgency, there would on all hands be flexibility in interpreting the rules.
I understand the concern, especially of the Whips, that the power to vote down orders makes business intolerably slow to get through. Like the noble Lord, Lord Renton, and for very much the same reasons, I do not think that that would happen. Since. I have been a Member of your Lordships' House I have once or twice been suspected—unjustly, I hope—of wasting the time of the House. That is a very painful suspicion. This is a place which depends on the relationship between us. If one is doing something which the House feels to be unacceptable, one does not increase one's effectiveness—and anyone with any sense at all knows that. That has been the quality of this House for many centuries. I do not think that it is going to change, so I do not think that we need to worry too much about restraint. The noble Lord the Lord Privy Seal talked about restraint. I cannot help but be reminded of Roy Campbell's On Some South African Novelists:You praise the firm restraint with which they write— I am with you there, of course: They use the snaffle and the curb all right, But where's the bloody horse?I hope that we will not live to have that said of this House.
§ 6.51 p.m.
§ Lord Simon of Glaisdale
My Lords, I am most grateful for the way in which this Motion has been received and for the contributions that have been made to this debate. I think that it is now clear that there was an attempt to assert a convention that your Lordships would not vote against subordinate legislation. I gave only two examples of that. The noble Lord, Lord Rodgers of Quarry Bank, gave others, including something that was said only last week by the noble Lord, Lord Henley. I must say that when I heard the noble Lord say what he did I thought that his brief had probably been pre-cooked because it was already out of date by the concession which the Lord Privy Seal has made.
It would be impossible—indeed, it would be impertinent—to refer to all the matters that have been raised in this debate, but I know that your Lordships would wish me to put on the record our pleasure at the return to your Lordships' debates of my noble friend Lord Henderson of Brompton after his indisposition. Perhaps I should include the noble Lord, Lord Rodgers of Quarry Bank, in that. I knew that the noble Lord could not stay until the end of the debate even if he were to speak in it, but then I heard that he was unable to attend because he had injured himself severely while gardening. There came to my mind the fact that the noble Lord had disregarded Hilaire Belloc's words:It is the business of the wealthy man To give employment to the artisan".383 If the noble Lord was gardening, he was taking the bread out of somebody else's mouth and it serves him right if he was injured.
There are only one or two points to which I should like to refer briefly. The first is that raised by the noble Lord, Lord Rodgers; namely, local government orders. I found it difficult to gainsay what the noble Lord said. It may be that local government orders ought to be added to the three categories that were identified as those where your Lordships would be justified in voting against a statutory instrument.
The second is the point that was raised by the noble Lord, Lord McIntosh of Haringey, and other noble Lords; namely, affirmative and negative resolutions. Affirmative resolutions are undoubtedly a far better and more effective method of parliamentary scrutiny of subordinate legislation. On the other hand, they take up time every time that they are laid because a debate must then take place. I thought that the noble Lord was right in suggesting that we ought not to prostitute, so to speak, the affirmative resolution procedure unless it is really justified. There is also this to be said: the Scrutiny Committee has been extremely discriminating on the subject of affirmative and negative resolutions. Its discussion with departments carefully probed the basis on which a department claims that something is a proper area for parliamentary scrutiny. The Scrutiny Committee signals by bold type where it thinks that the department in question has gone too far. I venture to suggest that a practice is now developing which is very valuable.
The other point is amendability. I venture to agree with the noble Lord, Lord McIntosh of Haringey, that that is a breaking point. I cannot conceive of any government submitting to their subordinate legislation being amended because, as the noble Lord said, in effect, it means promoting subordinate legislation to the status of primary legislation.
In opening the debate, I should have drawn attention to the alternative technique which the noble Earl has developed and which is exemplified by the next Motion on the Order Paper; namely, presenting an argument for amendment. That seems very valuable. An alternative was suggested by the noble Lord, Lord Mottistone; namely, that we could use more widely the scrutiny procedure which has been worked out in relation to the Deregulation and Contracting Out Bill. That seems well worth exploring.
Finally, although the matter of the composition of the House has been raised, it goes well beyond the scope of this debate. However, I venture to suggest with all respect that in a debate where such notable contributions have been made by the noble Viscount and the noble Earl, we should not dismiss too readily the political and constitutional intuition that seems to be developed by a political culture that is handed down from generation to generation. I commend the Motion to the House.
§ On Question, Motion agreed to.