Last Wednesday, the House debated the Strathclyde Review – the report produced by Lord Strathclyde in the light of the failure of the House to approve the Tax Credits Regulations last October. Lord Strathclyde outlined three options for restricting or removing the powers of the House in respect of secondary legislation.
Because of the number of speakers, there was an advisory speaking time of six minutes, so our speeches were relatively short. You can read my speech here. I have also done a longer piece for the UCL Constitution Unit blog: you can read it here. The Review, as I argued, is fundamentally flawed. It proceeds from a false premise, namely that the House failed to comply with a constitutional convention. The claim that the House does not reject a statutory instrument or rarely does so does not constitute a convention – it cannot, since the claim refers to a practice, but not an invariable practice – and even if it did it was not breached, as the House did not reject the regulations, but voted for an amendment to delay them until certain conditions were met.
Even if one accepts that there is a case for addressing the powers of the House in respect of secondary legislation, the focus is too narrow. The House of Lords is the only House with a systematic and effective mechanism for scrutinising secondary legislation. Its Delegated Powers and Regulatory Reform Committee and Secondary Legislation Scrutiny Committee fulfil valuable roles. The Commons has no equivalent committees. It has neither the mechanisms nor the political will to engage in detailed scrutiny of statutory instruments. If one limits the powers of the House of Lords in respect of secondary legislation, one is not protecting the primacy of the House of Commons, but rather strengthening the position of the Government.