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Merits of Statutory Instruments Committee: Secondary Legislation

My Lords, I am pleased to be able to take part in this debate, which was so ably introduced by our chairman, the noble Lord, Lord Filkin. I have been on the Merits Committee for only a relatively short time, but two things struck me very forcibly when I became a member. One has already been mentioned by the noble Lord, Lord Jopling: the incredible workload of the committee advisers. They get on top of a huge raft of information. There are thick agendas each week, and they get on top of them and are always there, being very helpful and giving us excellent advice. Secondly, individual members of the committee—and I am sorry that, at the last minute, the noble Lord, Lord Armstrong, was unable to be with us—have a wealth of experience and knowledge. I have been a Front-Bench spokesman for the Liberal Democrats for most of my parliamentary career, here and in another place, so the majority of my time has been spent on primary legislation. However, to echo the comments of the noble Lord, Lord Jopling, it has been fascinating to look closely at how secondary legislation is scrutinised and dealt with. As a Front-Bencher, I rarely had much time for it, and in this House, where I am unable to pay a researcher to work for me full time, trying to keep up with the progress of secondary legislation has been difficult. Our committee is a good aid for people in this House. The last Bill that I dealt with as a Front-Bencher was the Housing Act 2004, which was so thick that I decided that I did not want to be a Front-Bencher any more. The trouble with local government and housing is that those concerned have to fight to get time in Parliament therefore the Bills become very thick. As with many Bills, the detail of large parts of secondary legislation was not available during the passage of the Bill, which meant that, after the Act was passed in 2004, a large number of statutory instruments came forward. They were still coming forward when I arrived on the committee in 2006, which was quite helpful because at least I knew about them already. We have discussed the required processes and the importance of consultation, which was addressed by the noble Lord, Lord Jopling, and the noble Viscount, Lord Colville of Culross, who explained how we should try to be better at it. However, what I described illustrates our passion as a Parliament for long, complicated legislation. I have not clocked up 42 years like the noble Lord, Lord Jopling. I discovered yesterday that the noble Viscount has clocked up 52 years. I have done only13 years across the two Houses, but in that time I have seen huge growth in the amount of legislation. In this Session’s Queen’s Speech we have the 11th education Bill, the 12th health and social care Bill, the 8th terrorism Bill and the 24th criminal justice Bill since Labour came into Government in 1997. What is more, 52 sections and five schedules of the Criminal Justice Act 2003 have still not been brought into force, two sections were repealed without having been brought into force and a further three were brought into force and then repealed, so some of the comments made by the noble Lord, Lord Jopling, are borne out in my experience. Since 1997, 365 Acts have been passed and there have been 32,000 statutory instruments, so there has been no shortage of work for our committee, and there will be lots to come. Our chairman, the noble Lord, Lord Filkin, referred to the Prime Minister wanting to do something about regulation, and we were all disappointed by the evidence from the Better Regulation Task Force to our committee. Despite its intentions, it did not seem to be taking this terribly seriously, so one of the things that I particularly support in our committee’s report is that we urge all government departments to do something about consolidation. We have heard graphic descriptions of the problems of trying to understand Bills that amend this, that and the other, going a long way back. Some departments do better than others. As the noble Lord, Lord Filkin, said, we have been very critical, but we try to praise people when they get it right. There is no doubt that our committee and the House of Lords play a vital role in scrutinising secondary legislation, as reflected in the comments of the noble Lord, Lord Norton of Louth. When writing this speech I was reminded of the comments of the noble and learned Lord the Lord Chancellor last week, when he was talking to us about the future of the House. He said: "““Members of this House, of all parties and of none, are loyal and dedicated servants of Parliament””." Every week there are jolly dedicated members on the Merits of Statutory Instruments Select Committee, I can tell you. The Lord Chancellor continued: "““They attend, they stay, they vote—and they do so, day after day, night after night, very often little noticed by the other place or the wider public. But without those efforts, that consistency and that application, regardless of party affiliation, the legislative process in our Parliament would not and could not work””.—[Official Report, 23/11/06; col. 439.]" His words are very relevant to the debate tonight. How we scrutinise legislation has been looked at recently not only by our own committee but also by the Joint Committee on Conventions. The noble Lord, Lord Norton of Louth, referred to that as well. He and others noble Lords pointed out that, although we often have debates on instruments and Ministers are required to reply—sometimes very constructively and at other times not quite so constructively—the House can reject a statutory instrument by Motion. It is not the usual practice; more often than not it is a non-fatal Motion. Even if we win a vote on a non-fatal Motion, the Government are completely at liberty to ignore what we have said. Sometimes they do take notice—I give praise where it is due. The Joint Committee on Conventions addressed that matter and the noble Lord, Lord Norton of Louth, referred to it. The committee also obliquely referred to the fact that we are not allowed to amend statutory instruments here. The noble Viscount, Lord Colville of Culross, thought that we would grind to a halt if we tried to do that, but the matter was raised in the committee’s report and we should look at it again when considering Lords reform. I think that many of us would agree that, if the process is not working properly, we should use our powers more boldly. That came out in much of the evidence to the Joint Committee on Conventions. I remind the House that that committee has members from both Houses. That is very important. I hope that this short debate will inform the House and a wider audience of the important and very useful role played by the Merits of Statutory Instruments Committee. As the noble Lord, Lord Forsyth, said, many people do not understand how secondary legislation operates. Every instrument we deal with affects individuals; the committee was very conscious of that in making its recommendations. We need to ensure that the laws are fair and effective and that those affected by them have the information they need to respond in the right way. One of our members explained graphically the terrible legal difficulties for people who do not understand that they might be committing a heinous crime and who must try to find their way through the legislation to discover what it is they have done. The committee has been trying to find ways to get its reports circulated more widely. This week I rang the local government solicitor on Northumberland County Council, of which I am now a member. In our conversation it emerged that he reads our reports weekly. That was very encouraging. I am not surprised, because a great deal of what passes through our committee affects local government. As we start this new Session, membership of the committee has changed slightly. I am very pleased to be able to welcome my noble friend Lady Thomas of Winchester. I am sure noble Lords will agree with me that she has added greatly to our debate. I am sure that she will be an enthusiastic member of the committee. There will clearly be plenty of business this Session. As we say on page 3 of our most recent report about the work of the previous Session, "““Despite this workload, the Committee has maintained good humour and a consensual approach””." I am sure we will continue to do so under the very good leadership of our chairman, the noble Lord, Lord Filkin. Tonight we have seen around the Chamber cross-party consensus about where we go on this. I sincerely hope that we will get a satisfactory response from the Government and that they will lookagain at our recommendations. There has been huge agreement around the Chamber tonight.