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“the fundamentals of the relationship between the two Houses ever since 1911, expressly limiting the powers of the Lords compared with the Commons, and acting as a long-stop to save a
Bill and to vindicate the primacy of the Commons when there is a deep disagreement between the two Houses.”
The third and fourth pillars are the Salisbury-Addison convention and the financial rights and privileges of this House and I will return in a few moments to both those specific matters.
Mr. William Cash (Stone) (Con) rose—
Mr. Straw: I give way to the hon. Gentleman. No debate that I have taken part in over the past 10 years would have been complete without his intervention. I will pay for his journey to Blackburn if he manages to keep the European Union out of his intervention.
Mr. Cash: I am delighted to be able to accept that offer. I am not sure when I am going to Blackburn, but my old school of Stonyhurst is not far away, so I may be able to take up the offer.
I put it to the Leader of the House that he and others have been speaking about primacy, but is it not useful and very important to ask the question about from where that primacy derives? It is from the will and consent of the British people in an election, which in turn derives from the functions of the House, including the last pillar that he mentioned in respect of financial privilege. The whole question of taxation also lies at the heart of the matter. To differ from my right hon. and learned Friend the Member for Kensington and Chelsea (Sir Malcolm Rifkind), I believe that the real question that lies at the heart of the primacy—I think that the Leader of the House may agree with me—depends on the manner in which any elected or partly elected House would be granted functions by this House, which would depend on the Parliament Acts themselves.
Mr. Straw: I think that the hon. Gentleman is entirely right about that issue. My right hon. and noble Friend the Lord Chancellor acknowledged the point yesterday that we have expressed the hope that the conventions would continue in any reformed Chamber, without more, but we also added in our response to the report that the extent to which there would need to be additional steps to secure that end would need to be addressed if there were any suggestion that the major parties did not support that approach in a new House. It is the case that when and if we reach an agreement by vote in this House on the broad outlines of the composition of a future House, there will need to be much consideration during the subsequent processes—not least the passage of any Bill—to ensure some guarantee that the conventions that everyone is accepting will operate in the new circumstances.
Mr. John Hayes (South Holland and The Deepings) (Con):
The Leader of the House and my hon. Friend the Member for Stone (Mr. Cash) are right that the functions of any reformed House define its power to some extent, because they shape what it can or cannot do. That has an impact on its status, but form as well as function matters and the form of the House will, if it is elected, confer a political legitimacy that it currently does not have—and it is bound to be a competing legitimacy. My right hon. and learned Friend the Member for Kensington and Chelsea (Sir Malcolm Rifkind) is right that primacy is a relative concept, so,
relatively, because of that competing legitimacy, this House will have less status, less authority, less esteem and less power.
Mr. Straw: That is an argumentative point; it is the hon. Gentleman’s view. If so, my advice would be to vote against—
Sir Patrick Cormack (South Staffordshire) (Con): It used to be the right hon. Gentleman’s view.
Mr. Straw: Indeed it did, but I can be forgiven for evolving my view. I do not believe that it is sustainable to have a wholly appointed second Chamber into the dim and distant future of the 21st century. We have to improve its legitimacy and we have to accept the consequences that go with it.
Mr. Straw: Allow me to finish the point. If people feel that a change in the level of assertiveness by the other place is such as wholly to undermine this place, they should vote against any change. On the issue of reputation, it is slightly paradoxical that it is the wholly appointed House that claims greater public reputation than we do, but in my view the authority and the legitimacy resides here.
John Bercow (Buckingham) (Con) rose—
Mr. Straw: I am going to make some more progress before giving way again.
Let me move on to deal with the Joint Committee’s findings on the conventions and the Government’s response to the report. First, on the nature of the conventions, paragraph 279 of the report concluded:
“Conventions, by their very nature, are unenforceable.”
In our debate in May last year, on the motion to create the Joint Committee on Conventions, the hon. Member for Cambridge (David Howarth) quoted a saying among French lawyers, which he said could be translated into English crudely as
“To codify is to modify”.
The hon. Gentleman went on to say that
“whenever one tries to codify practices, general principles, ideas and—above all—arguments, one takes away the essence of those various attempts to get at principles and ways of behaving, reducing them to rules and statements that start with the words “Whenever” or “If”.”—[ Official Report, 10 May 2006; Vol. 446, c. 469.]
There was a great deal of merit in what the hon. Gentleman said.
Conventions evolve with time, providing us with a degree of flexibility that is required by Parliament. That is a further answer to the point made by the right hon. and learned Member for Kensington and Chelsea (Sir Malcolm Rifkind). The conventions are an integral part of maintaining a good, healthy, working relationship between both Houses. We agree that it would be wrong to involve the courts in a question of a breach of a convention, and the Government would not seek to do so. As we see in this House all the time,
however, conventions are none the less powerful constraining principles that must not be lightly ignored.
I come to the issue of reasonable time. The House will be aware of anxiety in the Government that delays in the Lords in considering Bills were unjustly disrupting the legislative programme. The Government’s manifesto of 2005 therefore proposed that the Lords should be given 60 sitting days to consider business. The Government welcome the Joint Committee’s conclusion, in paragraph 153 of the report, that a convention exists that the Lords should consider Government business within a reasonable time.
Throughout, our primary concern has been to seek
“the outcome that is behind the manifesto commitment”,
as I explained to the Committee in June last year. That outcome is the proper consideration of Bills in the Lords, as the revising and scrutinising Chamber, and their timely return to the Commons. We are not wedded to the method specified in the manifesto and are glad instead that it has been used as a starting point for the Committee’s consideration. We also support the Joint Committee’s proposal that an indication could be made on the Order Paper of the other place when it has spent more than 80 days on the consideration of a Bill.
The Government also accept the Committee recommendations on the Salisbury-Addison convention. This important convention is the third pillar upholding the primacy of this House. A Government must be allowed to carry through their programme of work—their commitment to the electorate as outlined in their manifesto. That is vital to democracy and to Parliament’s accountability to the people. The Salisbury-Addison convention was first formulated in 1945, when circumstances were very different. There was an overwhelming Labour majority in this House and a phenomenal, stupendous majority for the Conservative party in the other place. The Conservatives had more than 1,000 peers; the Labour party had just 16.
Mr. Straw: I note that the radical who masquerades as a Conservative, the hon. Member for Buckingham (John Bercow), shouts, “Too many.”
There was plainly going to be grief if the House of Lords had been as assertive in 1945 as it had sought to be before the war. It was for that reason that Lords Salisbury and Addison agreed the convention. There have been changes since then, however, and we agree with the Committee that the convention has evolved over the past 62 years. It will no doubt continue to do so.
The Committee suggests that the convention is now understood as meaning that in the House of Lords:
“A manifesto Bill is accorded a Second Reading;
A manifesto Bill is not subject to wrecking amendments which change the Government’s manifesto intention as proposed in the Bill;
A manifesto Bill is passed and sent (or returned) to the House of Commons, so that they have the opportunity, in reasonable time, to consider the Bill or any amendments the Lords may wish to propose.”
The Committee also noted that the evidence points to the emergence in recent years of a practice that the House of Lords will usually give a Second Reading to any Government Bill, whether or not it is based on the manifesto.
The Committee did not attempt to define a manifesto Bill, and we believe that it was right not to do so. In the original circumstances of Salisbury-Addison, manifestos were commendably short. The Labour manifesto that led to the great reforming programme between 1945 and 1951 was eight pages long. Our manifesto for 2005, although replete with wisdom in every line, was 114 pages long, and even more radical than its 1945 predecessor—
John Bercow: Most of it was pictures.
Mr. Straw: No, the hon. Gentleman is thinking about the 1997 and 2001 manifestos. The hair-shirt brigade, of which I am a member, won the argument when it came to the 2005 manifesto. I do not think that there is a single picture in it, except possibly one of our leader—but in black and white.
I believe, as a student of manifestos old and new, that whether they are eight or 114 pages long, they cannot be the last word, the truth and the light, on any Government policy. They have to be the subject of further consideration. For that reason, the Committee was wise not to define a manifesto Bill, or to say that there had to be some ineluctable connection between what was in the manifesto and what finally pops out in legislation.
We welcome the clarity that the Committee’s description brings to this essential convention and agree that it is time to consider a new name, to recognise its evolution. In paragraph 115 of the Committee’s report, the Committee suggests that the convention be called the “Government Bill Convention”. However, as we state in paragraph 27 of our response, we are aware of some concern that that name could imply that the same, more restrictive, conventions apply to the Lords’ handling of non-manifesto Government Bills as apply to manifesto legislation. We have therefore suggested that it might be more elegant to call the new definition of the convention the Cunningham convention, to acknowledge the work of the Committee and its impressive report. That question will not come before the House until another day, but I happen to think that it is a good idea. By convention, I shall call it the Cunningham convention.
I come to the Committee’s conclusions on financial privilege—an issue that has exercised the hon. Member for Stone—which is the fourth pillar of the primacy of this House. The financial privilege of this House, and the tight limits on the powers of the second Chamber in this area, are key to the way in which our Parliament and our constitution operate. Indeed, the Joint Committee, in its special report—its first report—stated that it would
“take the financial privilege of the House of Commons as a given.”
In paragraph 244 of the present report, the Joint Committee states that the Lords Economic Affairs Committee should continue to
“address only technical issues of tax administration, clarification and simplification.”
Provided that it continues to do so, the Committee felt that the financial privileges of this House would not be infringed. The Government agree with the Committee’s conclusion. We will continue to keep under review the activities of the Economic Affairs Committee and its Finance Bill Sub-Committee, and we will not waver from defending the financial privilege of this House, which is fundamental to our constitutional arrangements today and in the future.
In relation to secondary legislation, the Joint Committee concluded that the Lords should threaten to reject statutory instruments only in exceptional circumstances, and the Government accept this conclusion. The Government also welcome the Committee’s conclusion that the Opposition parties should not reject a statutory instrument simply because they disagree with it. It is important to remember that the power to create statutory instruments, and the principles behind the primary legislation, will already have been debated and considered by both Houses of Parliament. Of course, Parliament can change the primary legislation, should it wish to do so.
The Government believe that the principle that Opposition parties should not reject an SI simply because they disagree with it should apply even to the types of SI referred to in conclusion 17. The other place should not reject an order simply because it dislikes the policy, if the order has been properly made under the procedure set out. In relation to two of the circumstances in the Committee’s list of examples, my right hon. Friend the Secretary of State for Northern Ireland has already agreed to consider different arrangements for scrutinising Northern Ireland orders if devolution is not restored. I believe that that will meet with the approval of the House.
In addition to that, the Government have given an undertaking that Parliament will have the opportunity for pre-legislative scrutiny of Orders in Council transferring powers to the Welsh Assembly, before they are laid. The Government also accept that, should they lose a vote on a non-fatal motion about a statutory instrument, they should respond to the House and to the other place in an appropriate way. We also agree with the recommendation that should the Lords reject a statutory instrument—which, as Members know, is extremely rare—they should incorporate their reasons for disagreeing with it in their motion or amendment.
Sir Nicholas Winterton (Macclesfield) (Con): The Leader of the House is concerned about the primacy of this House and the ability of Members to hold the Government of the day to account. Does he agree that successive Governments—not just this one—are resorting increasingly to the use of secondary legislation because it removes the need for a full debate on the Floor of the House of Commons on important matters? Does he agree that there is therefore, to an extent, an abuse of the use of secondary legislation?
Mr. Straw:
Certainly, I agree with the hon. Gentleman that—I think that this is right—the number
of statutory instruments laid has increased decade by decade. I do not agree with him, however, on the reason. As a Home Secretary who generated a large number of statutory instruments, I know that the principal reason, in relation to the legislation that both I and my predecessors put forward, was that the House had said that the decision-making power to be invested in the Secretary of State should be the subject of parliamentary accountability, whereas previously no accountability at all would have been provided in respect of that. I am aware of the common charge that the number of SIs indicates Ministers trying to avoid scrutiny, but I do not think that that was ever the intention— [Interruption.] Perhaps an inquiry into that is needed. A large number of decisions that would previously have been made by fiat inside Government are now the subject of SIs. As the hon. Gentleman knows, I happen to believe in the maximum scrutiny of ministerial decisions. However, if every SI had to depend on an affirmative resolution, the whole of government would gum up.
John Bercow: Whether or not the avoidance of scrutiny is the Government’s intention, it is unarguable, on the empirical evidence, that in practice that is often the consequence. May I put it to the Leader of the House, who is both fair-minded and a serious parliamentarian, that if the Government expect their credentials to be respected and timeous consideration by the other place of secondary legislation, they would help their own cause if, more often than not, they could at least publish such secondary legislation in draft form before the Third Reading of a Bill in this place?
Mr. Straw: I agree with the hon. Gentleman, and we do our best in that respect. Certainly, the way in which we deal with secondary legislation can be improved. The challenge is to do that in a way that is practical and does not seize up the works. We have considered carefully recommendations in the other place—an important and expanded function of the other place that has not challenged the primacy of this place but helped to underpin it—from the Delegated Powers and Regulatory Reform Committee. Substantial debate has taken place inside the Government on how we can improve procedures, and there is a good case for that to continue.
Mr. Alan Beith (Berwick-upon-Tweed) (LD): I am not sure that the Leader of the House is doing full justice to paragraph 229 of the report. It gives a number of examples of circumstances—I shall just give two—in which it would be right for the other place to consider rejecting an amendment. That would apply when the parent Act was merely a “skeleton Bill” and the content of the statutory instrument was of a kind normally found in primary legislation. Alternatively, it would apply in those common circumstances in which a Minister says to the House, “Don’t worry about passing the Bill, because this can only be brought in by statutory instrument”, which clearly implies the possibility of that statutory instrument being voted down at some point.
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