The Public Administration and Constitutional Affairs Committee rejects the idea of legislating to implement the Strathclyde Review's recommendations for curbing the power of the House of Lords to block secondary legislation, in its report into the findings of the review.
The Report considers that an immediate recourse to a legislative response would be a disproportionate overreaction to the Lords' controversial votes against the Government over the Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015. The Committee regards the event as the Lords legitimately exercising a power that has only been exercised on five occasions and which even Lord Strathclyde himself has admitted is rarely used.
Chair of the Committee, Bernard Jenkin MP, says:
"It would be constitutionally unsustainable if the House of Lords frequently blocked the policies of the Government of the day, but this has been very far from the case. We think the issue of the excessive size and unbalanced composition of the Lords is a much more pressing issue, and it is wrong to consider the powers and functions of the House of Lords in isolation, on the basis of one wholly exceptional and highly political event."
While Lord Strathclyde's suggested Option 3, enabling MPs to override Lords rejections of statutory instruments after a second vote in the Commons, may seem attractive there would be significant consequences if adopted. Without appropriate safeguards, Option 3 could see the House of Lord's influence and role in statutory instruments substantially diminished, encouraging Governments to rely even more on statutory instruments and potentially increasing the number of statutory instruments rejected by the Lords.
The Report also agrees with the House of Lords Constitution Committee that there are a number of outstanding issues that would need to be addressed before Lord Strathclyde's Option 3 could or should be implemented. A blanket application of Option 3 to statutory instruments would be deeply undesirable, particularly in relation to the exercise of so-called Henry VIII powers, whereby an Act provides that secondary legislation is used as a fast track to amend or repeal primary legislation.
The Committee agrees with Lord Judge, that these clauses, unless strictly incidental to primary legislation, represent "a blow to Parliamentary sovereignty". If the Government is minded to proceed with Lord Strathclyde's recommendations, then it must guarantee that Option 3 would not apply to instruments made under legislative provisions which amend primary statute.
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