Lord Knight mentions that it is a convention that the House of Lords does not reject delegated legislation. As I pointed out in the House recently, when this issue, came up, it has been the usual practice of the House to agree to orders but it has not amounted to a convention. As the Companion to the Standing Orders records, the House has only occasionally rejected secondary legislation, but as it goes on to record the House resolved (in 1994) ‘That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration’.
Voting down an order is not, as some have claimed, a nuclear option. It is open for the Government to come back with a new order. Rejecting an order forces Government to review it and address any deficiencies. Once the House established a Merits of Statutory Instruments Committee, it struck me as illogical not then to be willing to use our power to reject a statutory instrument if it was found to be defective and the Government itself did not withdraw it.
These comments, I should add, are concerned solely with the claim about conventions and are unrelated to the substance of what the House will be debating on Tuesday. The fact that the House may reject an order does not necessarily mean that it should do so.