asked Her Majesty’s Government:
Whether they have issued guidance to government departments that, in the event that a report from the Merits of Statutory Instruments Committee expresses serious criticism of a statutory instrument laid before Parliament, they should consider the option of withdrawing or revoking the instrument and relaying it in amended form.
My Lords, all government departments are aware of the valuable work done by the Merits Committee. They take its recommendations seriously and, faced with a critical report, will consider all options, including the possible amendment or withdrawal of the instrument.
My Lords, does the Minister recall that when this issue was last raised, both the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Tomlinson, got the vapours about the fact that Liberal Democrats had opposed three out of more than 3,000 statutory instruments? The problem remains that we have only a nuclear option against statutory instruments. Both the Cunningham committee and the Merits Committee have drawn attention to that. We now have an excellent committee. Is it not time to give it just a few teeth?
My Lords, I am not sure that my noble and learned friend got the vapours. However, the committee is indeed excellent, and I have responsibility for liaising between it and government departments. As Governments increasingly and rightly use secondary legislation to ensure the flexibility that we need in developing policy, it is important that we are able to ensure that the role and work of the committee are recognised and valued. To that end, I am in discussion with government departments.
My Lords, the noble Baroness said that the committee does vital work and the Government listen carefully to it, but I do not think that that is true at all. Time and again, the Merits Committee has advised the Government to take a different course of action and has been ignored, most recently on housing information packs, which we now hear are to be reintroduced. Could the noble Baroness not rethink her Answer? If she means that the Government are going to listen, should they not take forward the suggestion of the noble Lord, Lord McNally, which seems the right way forward?
My Lords, I had a personal bet on how long it would be before home improvement packs were mentioned, and I think I win. I do not agree with the noble Lord’s analysis about the number of times that issues raised by the committee have been ignored by the Government or have not received a positive response from them. The committee’s analysis demonstrates that it provides excellent work to your Lordships’ House. It does ask the Government to think again, but its remit to look at legal, policy and political issues means that, in turn, the Government must respond, and they do. They recognise what the committee has said, but also put arguments forward for why they should not make the changes the committee recommends.
My Lords, as an ex-Chief Whip, I want to make certain that the convention of not voting against statutory instruments is continued. However, if the Government are not going to listen to the Merits Committee, more fatal Motions will be put down against statutory instruments in this House, and the convention will be blown.
My Lords, I hope that the convention is not blown. It is important that in discussions on primary legislation, we have the opportunity to consider the value and role of statutory instruments. The Delegated Powers Committee, too, plays a vital role in your Lordships’ House in putting forward proposals and suggestions on what is appropriately done within statutory instruments that the Government take forward. None the less, it is important that the Government look at the work of the Merits Committee. As I indicated, I am in dialogue with the committee and government departments to make sure that that happens properly, but it does not necessarily mean that the Government should change their view.
My Lords, does the Minister accept that secondary legislation is the wrong place to develop policy; that this Government have been adept at producing framework Bills in which the policy is developed through statutory instruments; and that that is the wrong way to proceed?
My Lords, this is a fundamental debate about the role of primary and secondary legislation. It is clear that the secondary legislation option gives us the flexibility to review how legislation is working effectively, to make changes in the light of experience, which noble Lords would want, and not to have to wait for primary legislation. The critical issue is how well, in our debates on primary legislation, we understand what the secondary legislation will do so that when faced with the proposition that comes forward, noble Lords can make the decision yes or no.
My Lords, does the Minister recognise that if her praise for the value of the Merits Committee’s reports is anything other than lip service, the following must happen? If the committee produces a critical report, either the instrument has to be withdrawn and relaid, or the Government must publish publicly their reasons for going ahead notwithstanding the Merits Committee’s report, and that has to be debated so that the House can decide whether it believes the Government or the Merits Committee.
My Lords, there are many ways in which government departments can respond. The Merits Committee has just published correspondence and will be formally responding to me on it by the autumn, I gather. I have asked departments to consider three things in particular: making a member of top management responsible for the effectiveness and efficiency of preparing statutory instruments; their scope for producing detailed management plans for secondary legislation; and their scope for more informal consolidations or better guidance to help those affected by it. Those practical suggestions that I have made to government departments will enhance the opportunities for statutory instruments.
My Lords, do the Government not frequently place this House in a Catch-22 situation? During the passage of primary legislation, Ministers often get a proposal through by saying that the Government will only bring it forward in secondary legislation that must pass through both Houses, but when one House exercises its right not to pass it, particularly this House, the Government then cry “foul” or “constitutional outrage”, among other things. Would it not be more honest to say that secondary legislation need go only through the Commons, or to accept that occasionally this House has the right to say no?
My Lords, I read with great interest the speech made by the noble Lord at the end of the debate on casinos, when he talked about the role of the Whips. From his time as an adviser in government, he well remembers the regrouping process that takes place when the Government are defeated. I am not going to take any lessons on that, nor shall I give the noble Lord any. I do not believe that this House is in a Catch-22 position. As a Minister who has taken quite a large number of Bills through your Lordships’ House, I am mindful of what I say about secondary legislation. I have always been held to account on what it might cover, and I believe that I and all my noble colleagues have brought forward precisely what we have said we will bring forward. It is for this House to make its decisions.