Delegated Legislation in the House of Lords since 1997

For a more recent examination of delegated legislation in the House of Lords up to the 2022–23 parliamentary session, see: ‘House of Lords data dashboard: Delegated legislation‘.

This Lords Library briefing provides an overview of delegated legislation in the House of Lords since 1997. It does this through a chronology of some of the notable debates in the House about the powers of the Lords in this area and provides a summary of the key developments and reform proposals during this period. It concludes with appendices giving statistics on divisions in the Lords on delegated legislation.

The Companion to the Standing Orders and Guide to the Proceedings of the House of Lords (2015) summarises the general powers the House of Lords has in relation to delegated legislation:

The Parliament Acts do not apply to delegated legislation. So delegated legislation rejected by the Lords cannot have effect even if the Commons have approved it. Neither House of Parliament has the power to amend delegated legislation. The House of Lords has only occasionally rejected delegated legislation.

It then refers to a resolution passed in 1994: “That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration”.

Some Members have argued that there is a convention that the House of Lords does not vote down statutory instruments (SIs) that have been, or would be, approved by the House of Commons. Others, however, have rejected the notion that such a convention exists. In recent years, procedure has been reformed in order to facilitate Members to debate delegated legislation through non-hostile, neutral motions. In practice, the ability to reject such instruments remains.

As the Companion notes, historically the Lords has rarely used the power to reject delegated legislation (once in 1968, and four times in the period covered by this Note). In addition, on 26 October 2015, the Government was defeated in the House of Lords after Members voted to support two amendments to an approval motion, both of which sought to delay consideration of the Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015 until specific conditions had been met. Following these votes, on 27 October 2015, the Government announced a rapid review to examine “how to protect the ability of elected governments to secure their business”. The review, led by Lord Strathclyde, was published in December 2015. He recommended a new procedure whereby the Lords could “invite the Commons to think again when a disagreement exists and insist on its primacy”. The procedure would be set out in statute. The House of Lords is to debate the Strathclyde Review on 13 January 2016.