Healthcare (International Arrangements) Bill — House of Lords, 2019-02-21
Topic: Government Operations
Jonathan Marks (Liberal Democrats, Centre to centre-left): My Lords, for years many of us have believed that the procedures for considering statutory instruments have been unsatisfactory. Whether any statutory instrument is to be passed by the affirmative resolution procedure or the negative resolution procedure—a question we have discussed today—is not the fundamental point. That distinction merely determines the way in which the instrument comes before Parliament to be debated—if it does so The more fundamental problem, which we all recognise, is that SIs are unamendable. They are "take it or leave it"—every paragraph or none. We were reminded on Tuesday by the noble and learned Lord, Lord Judge, that it is exactly 40 years since the House of Commons rejected a statutory instrument. In this House, we too have the power to reject statutory instruments by fatal Motions. The last time we did so—at least, it was said by some that we did—was over tax credits in 2015. Indeed, it was on the Motion of the noble Baroness, Lady Manzoor, when she was on this side of the House On that occasion, the right-wing press railed against us for exceeding what it thought our powers ought to be and advocated our abolition. Anyway, the Government set the noble Lord, Lord Strathclyde, on us, after which the fuss rather died down. However that may be, fatal Motions are very rarely passed by this House. I think that is partly because they are seen as disrespectful of the primacy of the House of Commons and partly, perhaps, as was pointed out by the noble Lord, Lord Foulkes, because the Whips discourage fatal Motions in case they, too, will face such Motions when it comes to their party’s turn in government I suggest that the power to reject delegated legislation is an important power and ought to continue. However, it is a residual power to be used very sparingly and when the objection to an SI is very substantial indeed. The noble Lord, Lord Butler of Brockwell, said in debate on the first group that we should use the power to reject SIs more often to achieve amendment by sending them back for review and reintroduction. That is a way of doing it, but it runs into the difficulty that it may be too cumbersome and, for the reasons I have mentioned, I doubt that it would be a politically workable approach. Regret Motions, which we often use, are useful, but they come too late in the process and the Government do not have to take any notice of them However, under my amendment, the Government would have to publish a draft 28 days before laying the regulations and give both Houses a chance to debate the draft, and to do so before it is actually laid. That would give us an opportunity in a relatively informal way to identify defects in instruments or particular provisions that ought to be removed. Amendment 32 would avoid the need to go through the super-affirmative procedure, which many would advocate for some of the provisions in this Bill, but it would improve scrutiny Under our existing arrangements, the power to scrutinise secondary legislation is weakened by the lack of any provision for Parliament to point to particular provisions in an SI and ask the Government to think again. Mine is of course a probing amendment. I suggest that it is particularly relevant to the provisions of the Bill because the regulation power, as we have all considered—many have made this point—is so general, so unrestricted and so unpredictable in its likely or possible exercise This amendment may be of more general relevance—I do not suggest otherwise. It is intended to offer a way for Parliament to have an early opportunity of considering proposed delegated legislation in draft before it is laid; to give MPs and Peers an opportunity to consider and express concerns about a proposed statutory instrument, or particular provisions within it; and to give the Government an opportunity to respond to issues raised in such exploratory debates. The amendment is expressed in the terms of a requirement on the Government to make those debates possible, because it is intended to emphasise that statutory instruments, though made by Ministers, are made under powers vested in Ministers by Parliament and are subject to parliamentary scrutiny I do not suggest that this amendment, or this type of procedure, ought to apply to every piece of delegated legislation, but I do suggest that it is worth considering. Many of us believe that scrutiny has become too weak and the power of Ministers too strong. This amendment is intended to explore a way of tilting the balance back in favour of parliamentary scrutiny and would, I suggest, offer us one path to better and more carefully considered secondary legislation. I beg to move.