The House of Lords and secondary legislation: Some initial thoughts on the Strathclyde Review

The Strathclyde Review, which was prompted by the House of Lords’ opposition to secondary legislation on tax credits, has been published. Its recommendation is straightforward: that the House of Lords’ powers in respect of statutory instruments (which is the form taken by the majority of secondary legislation) should be brought broadly into line with its powers, under the Parliament Acts 1911–49, in respect of primary legislation. The upshot, if the Strathclyde recommendation were implemented, would be that the House of Lords would lose its power to veto statutory instruments, any attempt by the Lords to block a statutory instrument being vulnerable to the exercise by the House of Commons of an override power. As with primary legislation, the Lords would be able to require the Commons to think again, but it would not wield any veto power. (In one respect, however, the Lords’ powers in relation to statutory instruments will be even more limited than their powers in respect of primary legislation: whereas the Parliament Acts enable the Lords to hold up primary legislation for one year, Strathclyde proposes no fixed period of delay in relation to statutory instruments rejected by the Lords.)

On the face of it, this proposal is disarmingly attractive: it would produce a superficially pleasing symmetry as between the positions that obtain in relation to Acts of Parliament and statutory instruments, in turn taking to their apparently logical conclusion concerns—relating to the two chambers’ relative democratic legitimacy—that underpin their already different powers in relation to primary legislation. However, the position is not as straightforward as this analysis—or the Strathclyde Review, which attempts to leverage such an analysis—implies. In this post, I outline three salient matters pertaining to statutory instruments, and, in the light of those matters, advance three arguments against the Strathclyde proposal.

Statutory instruments

First, the very term ‘statutory instrument’ conveys the impression that what is at stake is dull, technical, uncontroversial and inconsequential. The supposition might well be—and often is—that statutory instruments merely dot the ‘i’s and cross the ‘t’s that are left un-dotted and uncrossed Parliament itself. This is consistent with the conventional notion that secondary legislation—that is, legislation passed by the executive government rather than Parliament—fills in the details that Parliament itself does not have the time to turn its own mind to.

However, while some secondary legislation does do such things, the foregoing in fact represents only a fragment of the full picture. The reality is that—increasingly—very significant matters are left to secondary legislation. Take, for instance, schedule 8 of the Immigration Bill that is presently making its way through Parliament. If enacted in its present form, it will insert new provisions in existing immigration legislation heavily circumscribing the circumstances in which failed asylum-seekers can be provided with ‘support’ (such as accommodation and financial support). The Bill will permit such support to be provided only if a failed asylum-seeker is both destitute (or on the verge of destitution) and unable to leave the UK because of a genuine obstacle that prevents them from doing so. In this context, the meaning of the term ‘genuine obstacle’ is crucial: the more narrowly it is defined, the wider will be the category of destitute failed asylum-seekers who will be ineligible for support. However, the meaning of the term ‘genuine obstacle’—and so the extent of the category of destitute failed asylum-seekers who will be ineligible for support—is not to be found anywhere in the Bill. Rather, the meaning of that the term is to be determined by means of a statutory instrument to be made by the Secretary of State. That does not to me sound like an ‘i’-dotting or a ‘t’-crossing exercise.

Second, the volume of secondary legislation relative to primary legislation is immense. So far in 2015, the UK Parliament has passed 34 Acts, while, 1,999 statutory instruments have been made. (In fact, 2015 has been a relatively light year for statutory instruments: in 2013 and 2014, 3,292 and 3,486 statutory instruments were made.) Statutory instruments thus form a major site of law-making activity in the UK, and by virtue of that assume far greater importance than their name—or their level of public understanding—would suggest. It is also worth noting in this regard that reliance upon statutory instruments has increased very significantly over recent decades, as the following graph shows.

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Statutory Instruments 1950–2014   Source: House of Commons Library Note SN02911

 

Third, the degree of scrutiny to which statutory instruments are subject is far more modest than that to which Acts of Parliament are subject. The reason for this follows in part from the previous point. The volume of statutory instruments is so great that Parliament could not hope to scrutinise them all in any degree of detail. Moreover, even when, exceptionally, statutory instruments do attract parliamentary attention, such scrutiny as can be supplied is blunt, since Parliament can merely decide whether to approve statutory instruments, as distinct from amending them.

The Strathclyde proposal

Against this background, three arguments can be made against the Strathclyde proposal to deprive the House of Lords of any veto power in respect of statutory instruments. First, the superficially attractive suggestion that the Lords’ and Commons’ respective powers in relation to statutory instruments should mirror their respective powers in relation to primary legislation does not withstand analysis. Whatever might be the deficiencies of the process by which Parliament scrutinises primary legislation, it is undeniable that the extent and depth of the scrutiny that such legislation attracts vastly outstrips the scrutiny that secondary legislation receives. To compare primary and secondary legislation is therefore not to compare like with like. When a Government chooses to insert into primary legislation powers to make statutory instruments, one of the consequences of that choice—whether or not it is the reason for the choice—is that those matters that will thereby fall to be dealt with in secondary legislation will receive far less scrutiny than those matters that are addressed on the face of the Bill.

Viewed thus, the Strathclyde model amounts to a triple-whammy: it would permit the Government, just as it can at present, to shield parts of it legislative proposals from the full scrutiny that primary legislation attracts; it would substantially undermine the already lesser scrutiny to which statutory instruments are subject; and it would incentivise greater reliance upon statutory instruments as distinct from primary legislation in order to exploit the significantly weaker scrutiny regime applicable to the former. It might be asked why, given that the House of Commons will remain capable of scrutinising and blocking statutory instruments, it matters that the House of Lords is to be marginalised. The answer is that the House of Lords—by virtue of being the legislative chamber that is not inevitably captured by the executive, as well as by dint of its preparedness to engage with detail—is in a position to supply a form of scrutiny that the Commons simply is not. It is true, of course, that the Lords will continue to be able to examine and comment on statutory instruments. But if that is not underwritten by the possibility—very sparingly used—of something more than the registering of an impotent complaint, then the extent to which the Lords’ role will entail genuine scrutiny is questionable.

Second, this raises a question about what it means to enable the House of Lords—as a revising chamber—to require the Commons to ‘think again’, a role that Strathclyde acknowledges the Lords should retain. The Strathclyde Report proceeds on the basis that the House of Lords has too much power in relation to statutory instruments because rather than being able to require the Commons to reconsider, it can exercise a veto power. However, while to say that the House of Lords presently has a veto power in relation to statutory instruments is true, it is in fact only part of the story. If the House of Lords blocks a statutory instrument, nothing prevents the Government from seeking to wield the House of Commons’ status as the constitutionally dominant chamber by promoting primary legislation along the lines of the rejected statutory instrument. Such primary legislation would be invulnerable to a House of Lords veto because, in the end, it would be possible to enact in the absence of the Lords’ assent via the Parliament Acts. Over a number of decades, the House of Lords has used its ‘veto’ power in respect of statutory instruments extremely sparingly. In the light of that, requiring the Government and the House of Commons to override the Lords by means of enacting primary legislation under the Parliament Acts seems entirely fitting and proportionate, not least because such a course of action would ensure that the disputed provisions would receive an appropriate degree of scrutiny by means of their inclusion on the face of a Bill.

Third, the thinking behind the Strathclyde proposal is that it is undemocratic for the unelected Lords to be able to thwart the will of the elected Commons. My previous point demonstrates that this is not in fact possible, and that changes to the regime for scrutinising and approving statutory instruments are therefore not needed in order to address such democratic concerns. However, a broader point arises concerning the Government’s use of the argument from democracy. The difficulty in which it finds itself is that it is trying to have things both ways. On the one hand, it implicitly considers the charge that the House of Lords is ‘undemocratic’ to be insufficiently persuasive to warrant thoroughgoing reform of the second chamber. Yet on the other hand, the Government is prepared to use the democratic argument in order to weaken the second chamber’s powers. It is difficult coherently to occupy both of these positions. If the Government thinks that the House of Lords’ status as an unelected chamber is incompatible with democracy, then it should undertake reforms that address that issue. If, on the other hand, the Government is unwilling to do that, it should not be permitted to pray in aid concerns about democracy in order further to dilute the House of Lords’ powers. Those who promoted the Parliament Act 1911 at least perceived this point, as is evident from the preamble to the Act, which states that it was, in effect, intended to be a holding measure pending full-scale reform of the second chamber.

If the Strathclyde proposal were to be implemented, then the only way for the House of Lords to resist—in an anticipatory fashion—inappropriate uses of statutory-instrument-making powers would be to oppose in the first place provisions in primary legislation granting broad powers to make such instruments. The Strathclyde proposal would not affect the House of Lords’ capacity to do this, since it would remain capable, under the Parliament Acts, of delaying the enactment of relevant primary legislation by one year. However, it is of course likely that if the Lords were to adopt such a strategy, there would be calls for the Lords’ powers in respect of primary legislation to be further curtailed. Indeed, a levelling down—to achieve full symmetry—might be expected. It is, for instance, possible to imagine circumstances in which a subsequent ‘review’ proposed bringing the Lords’ powers in relation to primary legislation into line with their newly limited powers in respect of secondary legislation, by replacing the one-year delay power in the Parliament Acts with a power to object to Bills that could be immediately overridden by the Commons. This would ensure that the House of Lords was not only unable to block statutory instruments, but that it was also unable to delay the enactment of primary legislation conferring broad executive powers to make such instruments. In this way, a de facto form of unicameralism beckons. Such an outcome should be resisted vigorously.

This post is written in a purely personal capacity.