Baroness Finn:

Moved by Baroness Finn

4: Clause 1, page 1, line 25, at end insert—“(6) Where for the purposes of subsection (1) the House in which the instrument is considered is the House of Commons, the rest of this section will apply with “the House of Commons” in place of “the House of Lords”.”Member’s explanatory statementThis is a probing amendment that would ensure the House of Lords does not have greater powers to amend statutory instruments than the House of Commons.

My Lords, Amendment 4 seeks to grant another place the same power to initiate the “think again” procedure under Clause 1. In the other place, secondary legislation is considered differently than in your Lordships’ House. When an affirmative statutory instrument is tabled there, it is automatically referred to a Delegated Legislation Committee. These committees have 16 to 18 members, and any member can attend and speak, but only members of the committee can vote. A Delegated Legislation Committee considers an SI but does not have the power to stop it. In some rare cases, the statutory instrument is not referred to a committee but is debated on the Floor of the House if it is of particular interest. Once the statutory instrument has been debated by a committee, it needs final approval by another place before being made and becoming law.

As noble Lords will see, the other place suffers from precisely the same handicap as your Lordships’ House when considering secondary legislation. It has the binary choice to approve or not to approve. That is the question.

I tabled this amendment to probe the willingness of the noble Lord, Lord Thomas of Gresford, to grant an equal power to the other place to initiate the “think again” procedure. We are open to discussions on the precise drafting of this amendment, but it is the principle we are seeking to probe. Why should your Lordships’ House have the power to trigger a process by which Ministers are asked to think again when another place does not have that power? I accept that the Bill grants another place the ultimate say on whether Ministers are forced to amend their instrument, thus preserving the primacy of the elected House, but we do not understand why it is only your Lordships’ House that can initiate a process that asks the Government to reconsider.

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

My Lords, my objection to this amendment is that it simply does not make sense. We cannot, in the machinery that is set out in my Bill, conceivably exchange the position of the House of Lords for the House of Commons. I am not proposing legislating for the House of Commons but for the House of Lords, in the fulfilment of its function as a revising Chamber. If you change the words round—to read “House of Commons” instead of “House of Lords”—we would be asking the House of Commons to advise itself that it has made a mistake. I do not think that that can be done. The amendment put forward by the noble Baroness, I regret to say, does not make sense in the way that it is framed.

The machinery I have proposed allows the House of Lords to consider an instrument that is put before it and whether it has any concerns. If it has concerns, it does not form them into an amendment to the instrument; it simply conveys those concerns to the House of Commons for it to consider. Clause 1(2) offers two possible courses of action for the House of Commons: it can reject the concerns expressed altogether, and that is the end of that; alternatively, it can request the Minister to make amendments to the draft instrument. It is the House of Commons that makes the suggestion, to the Minister, of an amendment.

You cannot reverse that and suggest that there should be some machinery in the House of Commons to ask the House of Lords to make suggestions of amendments and to frame amendments for a Minister to make. It just does not make sense. Accordingly, since this particular amendment is a complete muddle, and with the greatest respect for the noble Baroness, I ask her to withdraw it.

My Lords, I am grateful to the noble Lord, Lord Thomas of Gresford, for engaging with me on this amendment yesterday. I understand why, as he explained then, he thinks that it does not make sense.

We tabled this amendment to highlight the fact that the other place, just like your Lordships’ House, has no power to amend statutory instruments. If your Lordships’ House should have the power to initiate a “think again” process, with the consent of the other place, and to send Ministers back to look at their instrument again, we do not understand why the reverse should not be true—that the other place has the chance to look at it, not just that the Minister bring it.

It could be argued that when the other place disagrees with an instrument as the elected House, it should decline to approve it, yet we know that that has not happened since July 1978. It has been your Lordships’ House that has been more forceful in these matters, having rejected four statutory instruments by fatal Motion since 1997. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Clause 1 agreed.

Clause 2: Corrections of statutory instruments

Debate on whether Clause 2 should stand part of the Bill.

My Lords, this Bill seeks to give Ministers the power to change the text of statutory instruments after they have been approved by Parliament. The Hansard Society discussed the problems posed by incorrect drafting in statutory instruments at length in its 2023 report, Proposals for a New System for Delegated Legislation. In that report, the society confirmed that mundane technical errors might be addressed with a correction slip, but once a statutory instrument is made into law, any significant corrections that need to be made to it require that it be revoked, amended or replaced via a new instrument, thus duplicating many elements of the workload of departmental civil servants, National Archives staff and parliamentary officials, as well as Members. So once a statutory instrument is made, there can be no corrections, no matter how minor or technical, to the text of the secondary legislation.

We appreciate that Clause 2 seeks to put the current post-approval correction process on a statutory footing, but before putting this process into law, we must ask ourselves whether it is good practice in the first place. I accept that successive Governments bear responsibility for this, but Ministers should not introduce statutory instruments that need correction. They should get the drafting right before they are considered by Parliament. This is why we are concerned about putting this process, which seeks to resolve the results of bad practice, into law. The Hansard Society has put forward a proposal that all statutory instruments should be laid before Parliament in draft, other than in exceptional circumstances. This seems a far more sensible way forward. Surely, ironing out errors prior to the approval of a statutory instrument is superior to granting Ministers a statutory power to make those changes after approval. This process invites another concern about how the House is able to undertake sufficient scrutiny of ministerial use of this power to make technical amendments to ensure that the power is not improperly exercised.

Perhaps the newly created power in Clause 1 might be sufficient to give your Lordships’ House the opportunity to highlight errors in statutory instruments and recommend their correction by Ministers. As a general point, and I accept that successive Governments bear responsibility for this, Ministers should not introduce statutory instruments that need correction. They should get the drafting right before they are laid before Parliament.

My Lords, I suppose we are at a crossroads here: are we or are we not going to have legislation to improve statutory instruments and the procedure that is adopted? As I predicted at Second Reading and as we heard earlier from the Minister, there is no general enthusiasm for the Bill, which I regret.

As the noble and learned Lord, Lord Thomas, reminded us, with the Product Regulation and Metrology Bill we had a direct confrontation between the Government on one hand and Parliament on the other. Our Delegated Powers and Regulatory Reform Committee made a very clear recommendation that all statutory instruments in the context of that Bill should follow the affirmative resolution procedure. Indeed, the Minister, the noble Lord, Lord Leong, had a special session with the Delegated Powers and Regulatory Reform Committee, as a result of which the committee said that it was not minded to withdraw its recommendation that all statutory instruments should follow the affirmative procedure. I moved an amendment to observe and support our Select Committee, but it was voted down. I sense that even when a committee as powerful as the Delegated Powers and Regulatory Reform Committee has such a strong recommendation, even when it listens to the Minister and still maintains its position, there is no procedure whereby Parliament can hold the Executive to account through the affirmative resolution procedure.

I am filled with scepticism as to whether this is going to make progress. I can well understand my noble friend moving that Clause 2 no longer stand part, because, in a way, we are searching for a way to make this Bill acceptable, so that it can go to the other place and we can put it on the statute book as soon as possible. As the noble Lord knows, I strongly support Clause 1, but I have a nasty feeling that, despite his noble intentions, which I strongly support, we are slowly entering a cul-de-sac. Perhaps the Minister can lay aside all my worries and concerns by suddenly rising to say that she and her colleagues have changed their minds and we are going to have a far better procedure, as set out in this Bill, in which case I will be very pleased indeed.

My Lords, I entirely agree, and that is why it is such a pleasure to follow the noble Lord, Lord Hunt. He is right in identifying the crossroads: either we deal with our primary legislative procedure and make it more effective and efficient—in that I have great sympathy with any Government who want to get on with things—or we find a procedure for dealing with important instruments that subjects them to scrutiny on the Floor of the House, where they can be amended. We are doing far too much in the way of important changes to the law by statutory instrument, rather than by work on the Floor of the House through a proper Bill. But, if you decide that you cannot do anything about the primary legislative procedure, you cannot leave the secondary legislative procedure alone. The hereditary Peers Bill is a very good example of why, if you do not take an opportunity to reform one thing, you end up with something much worse. I urge the Government to look very seriously at this Bill.

I cannot agree with the proposal that Clause 2 should not stand part of the Bill. There is quite an important issue at stake. It is impossible, in our present procedure, to get the legislation drafted perfectly when it has not been scrutinised by someone outside it. That is an impossibility. Lawyers will always find things wrong. Although the Minister says that her legislation is perfect, I am afraid I disagree: it is not. It is a little far-fetched to think that, because we have a new Government, the whole machinery of government that drafts all this wakes up in the morning completely transformed. That is not the case. Therefore, there is a need to correct.

What is important here, then, is making sure that we are doing this in the right way. Although I am a great believer in conventions, which is what governs the current position—and what is happening on the other side of the Atlantic shows the importance of convention to the operation of our constitution—if we are altering law, the mechanism for altering it, to accord with the rule of law, has to be under a statutory power; we cannot leave it to convention. Therefore, although some people may raise their eyebrows at this clause, I do not see how you can leave that to convention; you must make it a lawful power under legislation. So I regret to say that I cannot support the proposal of the noble Baroness to amend the Bill in this way.

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

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

My Lords, the motivation for this proposal came from a very weary colleague who was fed up with sitting in the Moses Room while instruments were brought back to the Grand Committee from Ministers who had made mistakes some months before—what a waste of time. This debate does illustrate the waste of the time of the noble Lords in this House who sit on committees—the Secondary Legislation Scrutiny Committee, the Constitution Committee and the one I always get the name of wrong and on which I sat—

Noble Lords:

The Delegated Powers and Regulatory Reform Committee.

I thank noble Lords. We spend a long time worrying about whether things should be affirmative or negative. The debates then take place, there are regret Motions and the whole House is trooping through the Lobbies. There is a great deal of worry for everybody to be here. There is barely a sentence in the press the following day. Even if the regret Motion is won, nothing happens.

The proposal in Clause 2, on corrections of statutory instruments, puts into statute and gives a bit of “oomph” to what already exists through the National Archives and the work that it does. I am not saying that that is not done but it has no publicity. It does not have an airing. People’s views are not heard in this Chamber.

Therefore, I resist the noble Baroness’s clause stand part notice and ask her to withdraw it.

My Lords, I thank the noble Lord, Lord Thomas of Gresford, for his response and for the time that he has taken. I totally understand his frustration with current practice. I thank my noble friend Lord Hunt of Wirral and the noble and learned Lord, Lord Thomas of Cwmgiedd, for highlighting the problems with secondary legislation and holding the Executive to account.

We know that corrections in secondary legislation are a time-consuming problem. In the 2021-22 Session, the Secondary Legislation Scrutiny Committee found that 9.6% of all statutory instruments had to be replaced by a correcting instrument due to errors in the original approved instrument. Clearly, this should be resolved, but we are not convinced that the 40-day period in which Ministers can make corrections will be the silver bullet that we seek. We recognise the problem and hope to consider other possible ways to resolve this ongoing issue before we can accept this new statutory power. I beg leave to withdraw.

Clause 2 agreed.

Clauses 3 and 4 agreed

House resumed.

Bill reported without amendment.

House adjourned at 2.45 pm.