After the House of Lords' rejection of two Statutory Instruments in as many days last October, Lord Strathclyde was asked to review the use of secondary legislation and how the Lords' rejection of such might undermine the primacy of the House of Commons. However since then the recommendations of the review have not met with approval, and the extent to which the Government will seek to pursue Strathclyde's recommendations is unclear now that legislative minds are focused on Brexit.
In his review, Lord Strathclyde stated that parliamentary convention required the House of Lords not to reject statutory instruments, or to do so only rarely, as to do so would undermine the primacy of the House of Commons. However, in apparent defiance of the convention the House of Lords rejected the draft Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations. This was particularly controversial given that the Regulations related to financial matters, which are normally treated with a light hand by the House of Lords (although the fact that the Government had sought to introduce taxation measures through delegated legislation rather than through a Money Bill was itself criticised as an attempt to avoid parliamentary scrutiny). Lord Strathclyde recommended a new statutory process that would allow the House of Lords to "invite the House of Commons to think again" when it opposed a statutory instrument, but not to reject it outright.
Since its publication in December 2015 the Strathclyde Review has met with significant criticism. By March, two House of Lords select committees (perhaps understandably) criticised the findings of the report on the basis that it would reduce parliamentary scrutiny of the Government's actions. The House of Lords is often seen to provide a layer of additional scrutiny in which the Commons cannot provide due to a lack of capacity and a greater degree of partisanship. Reducing the power of the House of Lords to scrutinise and ultimately reject secondary legislation may encourage the Government to rely further on secondary legislation, knowing that there will be an increased prospect of statutory instruments which require approval of both houses of Parliament being passed with minimal changes.
Perhaps more significantly, in May the House of Commons Public Administration and Constitutional Affairs Committee (PACAC) also criticised the idea of using a legislative route to prevent rejection of delegated legislation in the future. It noted that the House of Lords had only blocked secondary legislation five times in 50 years, and found that "change must be the result of careful and thorough considerations, and not be undertaken in haste or for the wrong reasons." In particular, PACAC again noted the important role of the House of Lords in scrutinising statutory instruments.
Just a week after the PACAC report was published, the Queen's Speech contained the comment that the Government "will uphold the sovereignty of Parliament and the primacy of the House of Commons". The background notes to the Queen's Speech stated that "the Government is considering Lord Strathclyde's recommendations carefully and will respond in due course." However, no indication was given of whether the Government favoured Lord Strathclyde's approach or would seek to implement it to an appreciable extent.
Since June, however, the Government has had other constitutional issues on its mind. While it will be some time until we have any definite answers on Brexit, any change to the legislative process needs to be seen in the context of possible fundamental changes to the UK's constitutional arrangements and legislative priorities. The vast majority of EU law has been transposed into English law through secondary legislation; at the point of Brexit, it is likely that much of this will need to be revoked and replaced with domestic law. This is likely to require an unprecedented amount of legislation in a short time; if there are already concerns about Parliament's capacity to scrutinise secondary legislation, it is difficult to see how this could be managed without the House of Lords being trusted with its scrutiny powers. The replacement and/or effect of repealing every piece of EU legislation would need far more capacity than the House of Commons has in order to ensure no gaps are left. That said, given the volume of legislation expected, the Government may well wish to consider whether it can keep the House of Lords on a short leash to prevent Brexit becoming any more chaotic than it already seems.
Clearly the Government's capacity (and appetite) for constitutional change will be filled for some time with how to implement Brexit. Given the shift in priorities, and the vast amount of legislative changes Brexit will require, restricting Parliament's capacity to review legislation at this point may be a risky move. Much is likely to depend on the extent of the May Cabinet's appetite for control.