At the end of last year, Lord Strathclyde, the former Leader of the House, of Lords, undertook a review, at the behest of the Prime Minister, of how the House deals with secondary legislation. The review was prompted by the House not approving (though it did not reject) the tax credit regulations. The review was published in December. When debated in the House, it came in for severe criticism. As I argued in the debate and in a post on my blog, the review is fundamentally flawed. It derives from a false premise – that there is a convention that the House does not reject secondary legislation (there is no such convention) – and the focus was flawed. It took the House of Lords as the problem, whereas the real problem is the executive seeking to use secondary legislation to achieve policy goals, thus by-passing the need for primary legislation and extended parliamentary scrutiny.
Today sees the publication of two reports on the Strathclyde Review. One report is by the Constitution Committee, on which I serve, and the other is by the Delegated Powers and Regulatory Reform Committee. Both provide powerful critiques of the review. As the Constitution Committee argues, the review was focused on the wrong questions. ‘It consequently addressed the wrong issues. We believe that the more serious concerns arising from the delegated legislation process are rooted in the relationship between Parliament and the executive’. The Delegated Powers Committee reinforces this assessment. Lord Strathclyde came up with recommendations, each one designed to limit the power of the House of Lords in dealing with secondary legislation. As both committees recognise, if you limit the power of the House of Lords, you do not strengthen the House of Commons (which does not have the time to engage in sustained scrutiny of secondary legislation) – you strengthen the executive. That is why Lord Strathclyde’s review is not some minor technical report – it is actually quite dangerous in seeking to constrain the capacity of Parliament to call government to account.