House Of Lords should retain power to reject secondary legislation, says committee

The committee rejects all of the three options for a change to the way the House of Lords scrutinises secondary legislation which were set out in the Strathclyde Review:

The committee recommends that the Lords should retain its power to reject secondary legislation, albeit only in exceptional circumstances. Options one and three in the Strathclyde Review would remove this power, and option two would involve the Lords agreeing not to use it.

The SLSC heard evidence from a number of witnesses, including Lord Strathclyde himself, other peers, the Leader of the House of Commons, Dr Ruth Fox of the Hansard Society and Professor Meg Russell of UCL’s Constitution Unit. In the light of the evidence, it sees strong arguments for re-affirming the current “convention”, that the Lords should retain its power to reject a statutory instrument, but should use it only in exceptional circumstances.

Lord Trefgarne, chairman of the Secondary Legislation Scrutiny Committee, said: “Several of our witnesses, including Lord Strathclyde himself, raised the issue of the boundary between primary and secondary legislation, and a concern that a lack of detail in acts leaves too much to be implemented by statutory instruments.

“If primary legislation presented by government is adequately fleshed-out, subsequent secondary legislation will be subsidiary in the proper sense of the word, and unlikely to face serious Parliamentary challenge.

“We think that the current ‘convention’ should be re-affirmed, in the knowledge that the House of Lords, as a self-regulating institution, can be expected to make a reasonable judgement of whether, and when, it should challenge a statutory instrument.”