The debate on Second Reading took place in the House of Lords yesterday (November 9), culminating after eight and a half hours, just before midnight, with the Bill then being given a Second Reading and referred to a Committee of the Whole House in the usual way. The alternative opposition proposal in the name of Lord Hunt of Kings Heath, that the Bill be referred, as the Constitutional Reform Bill had been in 2004, to a Select Committee, was rejected by 188 votes to 151.
Speakers, and over 50 peers sought to contribute, were almost uniformally critical of the skeletal nature of the Bill and the proposed order-making powers, with much of the debate focusing on the trenchant criticisms of the Henry VIII clauses in the Bill made in the Constitution Committee's report. Comments such as "institutional vandalism", "flamethrower approach" and "as sharp a piece of legislative practice" peppered the debate, reflecting very real unease from many quarters with the constitutional import of the Bill. Particular criticism was reserved for the Schedule 7 list which sweeps up various public bodies as potential candidates for substantive reform, the Schedule being described by Baroness Crawley as a quango version of room 101 but with perhaps the most telling contribution coming from Lord Woolf, the former Lord Chief Justice, who warned of the danger of interfering with the independence of bodies concerned with the administration of justice in particular, said that he believed that the Bill was not consistent with the Constitutional Reform Act in relation to such bodies and described it more generally as wrong so far as the partnership between the legislature and the judiciary and the executive and the judiciary is concerned. But, whilst Lord Taylor promised to bring forward amendments to address concerns about lack of provision for scrutiny of order proposals generally, raising in particular the possibility of orders being published in draft for consultation and he also promised to review whether some bodies could be removed from Schedule 7, there was no commitment by the Government to additional Parliamentary scrutiny of orders, whether through adoption of the "super-affirmative procedure" or otherwise. The referral of the Bill to a Committee of the Whole House rather than to a Select Committee (which could have heard evidence and looked in detail at the merits of proposals for individual bodies) also means that the ability of the Lords to examine in detail how the Bill might be implemented remains severely constrained.
If nothing else, this Bill, which as one peer remarked includes delegated powers on an industrial scale, ought to bring forward some resolution of the difficult question of how the Lords can best scrutinise framework legislation and then its ensuing implementation through the exercise of delegated powers. If the Lords is truly to be a revising chamber, then most would agree that something more than a debate (without opportunity for amendment), on a motion to approve implementing orders, is needed and that just allowing for advance public consultation on draft orders would not achieve that. But how to achieve proper scrutiny without either unduly frustrating the delivery of the Government's agenda or imposing too heavy a burden on the Lords remains something of a dilemma.