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I take a more optimistic and charitable view of the letter from Mr Straw to members of the committee than other Members of your Lordships’ House. He wrote:

We have got to start somewhere. My contention, and that of my colleagues, is to assume that as soon as any reform package is put before either House, any Government—this Government or any other Government—would immediately be able to tear up the very important report from the committee chaired by the noble Lord, Lord Cunningham. It seems a ludicrous suggestion. That letter also disposes of the cynical idea that somehow it would make it necessary and would pre-empt any attempt to insist that there was no change at all. There has to be some change, but what sort of change would that be?

If and when the situation arises, there can surely be no question that all the bets are off and suddenly we have nothing in front of either House about the relationship and respective powers of the two Houses. What we have is the report of the Joint Committee and, I hope, the support of both Houses for its principles. This report and its reception by the Government puts paid to the idea that the arrival of an elected element in the second Chamber could or should necessitate a diminution of the role and powers of your Lordships’ House. It would surely be ridiculous if we accepted greater legitimacy at the risk of greater impotency. That is not a proper outcome.



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In the longer run, our unwritten constitution—to which reference has been made—may evolve dynamically as it has in the past. That is how our constitution has always proceeded. A more democratic, legitimate second Chamber may be even more effective in working with the Commons to hold the Executive of the day to account, but I do not believe that it will be necessary radically to rewrite the principles set out in the report of the Joint Committee. We all accept that no Parliament can bind its successor, so it would be folly for us to assume that everything is there for ever and a day.

I turn to the Salisbury/Addison convention. As a number of noble Lords have already said, the committee, and now the Government, accept that the convention has evolved, that it will almost certainly evolve still further and that it must remain flexible and unenforceable. It cannot therefore be rigorously defined, let alone legally codified. Transposition of this most loose of conventions into justiciable legislation would not just be complex, it would be impossible. The House will be relieved that Mr Hoon’s successor as Leader of the Commons, Mr Straw, saw sense on this issue and said from the outset,

Furthermore, the report makes abundantly clear that the concept of a manifesto Bill is fraught with inconsistency, lack of precise definition and lack of consensus. It would be very difficult to codify it, and I am glad to see that the Government now accept that conclusion. I am sure that all Members of your Lordships’ House welcome that outcome.

I shall make one personal suggestion. The Government reject the redefinition of the Salisbury/Addison convention as a government Bill convention, and they have suggested that, now it is updated, it might be renamed to acknowledge the role of a contemporary parliamentarian in achieving consensus on these issues. I wonder whether we could pay tribute to our late, much lamented and much missed colleague by rechristening it the Carter convention. I know from my experience in both Houses how much he did to give service to Parliament as a whole by his conscientious, consistent and always carefully argued insistence on the proper relationship between the two Houses and between government and opposition parties. As has already been referred to, he served on both Joint Committees examining these issues and right up to the last few weeks of his life he was working to get this right. The noble and learned Lord the Lord Chancellor, the noble Lord, Lord Tomlinson, the noble Viscount, Lord Bledisloe, my noble friend Lord Roper and the noble Baroness, Lady Symons, all referred to the role that Lord Carter played in these matters. Perhaps that suggestion might commend itself, and it might be something that the noble Lord, Lord Cunningham of Felling, might agree with.

I shall turn briefly to the specifics in the report. I feel sure that the recommendation of the Joint Committee about reasonable time and the Government’s acceptance of it will find favour in your Lordships’ House. The previous idea of a 60-day guillotine, which appeared in the Labour manifesto of 2005, no longer has the support even of its original promoters. On the subject

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of ping-pong, the Joint Committee concluded that the arrangements for negotiation between the two Houses were not subject to any convention and could not be codified, so I detect some disappointment in the Government’s response, but I see that they are being realistic in accepting that view.

On secondary legislation, the committee revealed frustration from Peers and MPs that amendments to SIs are so rigorously circumscribed that the nuclear option of rejection is the only way in which either House can do its scrutiny job properly. Incorporating mechanisms by which either House could improve an SI is obviously preferable, and changing that was unfortunately outwith the committee’s remit. I note that Mr Straw’s response concludes:

So that remains unfinished business.

Meanwhile, we on these Benches wholeheartedly endorse the view set out by the noble Lord, Lord Norton of Louth, in evidence to the committee. He said that any notion that statutory instruments are simply measures made by Ministers and are therefore a matter only for the Commons is absolutely atrocious, and he mentioned Sir Humphrey in “Yes, Prime Minister”. I believe that secondary legislation is just that: legislation. It needs the assent, or at least the absence of resistance, from both Houses, just as any statute does.

Finally, I turn to the primacy of the Commons—which has been a thread running right through today’s debate, and rightly so—the opening section of the report and the Government’s response to it. The Joint Committee’s first and crucial conclusion at paragraph 57 is:

I, and my colleagues on these Benches, totally accept that fundamental premise, as was made clear by my noble friends Lord McNally and Lord Wallace. The noble and learned Lord the Lord Chancellor described it as the bedrock of our parliamentary balance of power, and the noble Lord, Lord Cunningham of Felling, said that the unchallenged primacy of the Commons is critical to our discussion of these issues.

In his response, I hope the noble and learned Lord the Lord Chancellor will confirm that the Government believe that to be absolutely true and critical to the whole discussion. If so, there can surely be no question that if the Commons agrees a package of proposals for the composition of a reformed second chamber, this unreformed House could wield a permanent veto over that Bill. That would be to tear up the Parliament Acts. I have been intrigued and bemused that so many speakers today have on the one hand enthusiastically endorsed the primacy of the House of Commons—some of them very experienced Members of both Houses—and yet denied the right of the Government to use the Parliament Acts as a last resort—the long stop—if consensus cannot be agreed between the two Houses on Lords reform.



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There has been some sloppy thinking over the proper use of the Parliament Acts in such circumstances. The Government must make it absolutely clear this evening that they accept the full recommendations of the Joint Committee; that they reiterate the primacy of the Commons; and that they accept the implications for the use of the Parliament Acts in this as in other contexts.

7.01 pm

Lord Strathclyde: My Lords, this has been an outstanding and important debate; one that I have much enjoyed, not least for the reappearance of the noble Lord, Lord McNally. It was a pleasure to hear from him this afternoon. This is the first in a series of debates that will take us through the next few weeks and months as we discuss the future of this House. Today we have been in general warm approval and agreement with the committee. That may not be the case the next time when we discuss the White Paper, and not 24 speakers but probably 124 speakers will have a view on that.

The Motion before us addresses the excellent report of the Joint Committee, on which I can share the general approval without endorsing each and every specific provision in the report, which I do not. However, sometimes it appeared that noble Lords were referring to another, as yet unpublished, report, which is in all our minds and where many in this House would hope for the same no change conclusion of the Joint Committee. That report is the imminent White Paper from the Leader of the House of Commons, Mr Shaw, and the noble and learned Lord the Lord Chancellor on further reform of your Lordships’ House.

Like the noble Lord, Lord McNally, I have been part of Mr Straw’s “study group”, for want of a better expression. It has been an interesting process. I suspect that all of us have learnt a great deal, but there are still many details to be discussed. We are told that the White Paper will be published early next month. We are also told in press briefings that there will be a degree of unanimity about it across the parties involved. I am less positive about that than the noble Lord, Lord McNally, not least on a proposal to have proportional representation to elect Members of this House. I, for one, would find it very hard to support that. But we have participated in good faith in these discussions, and will continue to do so. We have only one purpose in doing so. That is to defend Parliament and to strengthen this House. Anything that does that we should consider; anything that fails that test we should not go along with.

Of course we must await the publication of the Government’s proposal and then allow the time for reflection and discussion on the right way forward. Goodness knows that with the chaos we see all around in hospitals, schools, criminal justice, foreign policy and the political management of our Armed Forces, hasty change in your Lordships’ House is not the first political priority facing us.

One of the strengths of the Joint Committee was not to be bounced by anyone’s short-term political agenda but to look at the objective reality. One

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objective reality recognised by the Joint Committee, but absurdly rejected by the Government in their response, was that were there ever to be an elected House, it would certainly take a different view of the conventions; and those conventions would have to be re-examined in those fresh circumstances. It defies logic, even for the noble and learned Lord the Lord Chancellor, who is much skilled in these matters, to argue otherwise.

If there were common threads in the reaction to the report, two have been pre-eminent. The first was that the committee did an outstanding job and the whole House is grateful to those who took part, and, indeed, who have given us the benefit of their expertise. Today, I pay particular tribute to the chairman, the noble Lord, Lord Cunningham of Felling. The second involved relief, but not surprise, that the committee gave a clean bill of health to this House—a verdict of not guilty was what the noble Lord, Lord McNally, called it, and I agree. The committee found what most of us know: that this House is working well. The Government gets their business in reasonable time. The House does not hold up, and never has held up, the business of any Government in modern times, and has no intention to do so. Its reiterative scrutiny procedures, including ping-pong, contribute to the effective improvement of legislation.

In short, as with much else affecting this House, I ask again: “What on Earth is the problem the Government are trying to solve that they are constantly messing about with this House?”. I wait in vain for the noble and learned Lord the Lord Chancellor to answer that basic question.

When we look at the conventions of the House, I strongly believe that flexibility, reasonableness and sound sense behind our procedures are its greatest strength. We should defend that, and I am enormously encouraged by the report in that aim.

Against that background, let me consider the four areas to which the committee says it gave most study. First, I deal with the Salisbury convention. I can sense that this will become controversial, but I think that it should remain the Salisbury convention. It seems to me strange to argue that the name should change when the convention itself is well understood and the substance of it has not changed. I know that the Liberal Democrats have come on board and that the noble Viscount, Lord Bledisloe, argued that now we would all be bound by it, while the Conservative Party and the Labour Party both agreed it. Effectively it always has bound the House.

I am not a supporter of the phrase “government Bills”. There is no firm convention that a government non-manifesto Bill should not be rejected at Second Reading. Some have read that into paragraph 100 of the report, but that is not what it says, nor would it be desirable. Rejection of a non-manifesto Bill will be rare, but if it were forbidden the House would not have been able to refuse a Second Reading to a Bill to restrict trial by jury that was not in the preceding manifesto.

What matters is that the Salisbury convention has been scrupulously observed and will continue to be scrupulously observed by this side of the House, as it

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was by the party opposite, and, I have no doubt, it would be by the Labour Party again after the next general election. The convention works well and is broadly understood. While it is reasonably defined by the committee, I do not favour the idea of embracing it into a formal resolution, and certainly not one that would be submitted to another place. The other place has no role in deciding the internal usages of this House. If it had, this House would be relegated to being a mere Grand Committee of another place. None of us wants that. Subject to those points, I very much welcome the views of the committee.

Turning to secondary legislation, although many have argued, as my noble friend Lord Wakeham did in his royal commission report, that a power to reject might be replaced by a power to delay, or even a power to amend, the practical difficulties are great. I should acknowledge that my noble friend Lord Dean of Harptree has fought a long campaign on this. Instead, I think that we need three things: more legislative restraint by government with fewer skeleton Bills backed by reams of regulation, and more provisions in fewer Bills overall; better drafted legislation by departments, with Bills presented after, not before, the regulatory framework has been thought through—perhaps the Home Office could enter a period of silent reflection on that; and more use of sunset periods for regulation as well as for Bills.

Sometimes, as the committee acknowledged, rejection may be needed—very rarely—but the circumstances must be exceptional and extremely rare; and, as the committee also points out, pressure to use power to reject would be less if all Governments took notice of the passage of non-fatal Motions.

Thirdly, on ping-pong, again the Joint Committee found that there was nothing seriously wrong with the present system. Ping-pong, properly operated, requires both Houses to seek a compromise, which is a good British approach. If there has been a fault in recent years, I suggest that it has not been on the side of this House. The introduction in the other place of the system of packaging unrelated amendments, which continues to rankle greatly with many on this side, means that Governments now do not have to make the same effort to compromise. Your Lordships' amendments are not given sufficient attention or consideration. As the committee rightly points out, amendments are too often batted back and forth too quickly, which does not allow time for compromise or discussion. The ping-pong on detention without trial was a classic case. I hope that the Government will listen carefully on this. If they do not, we would want to look at it in the context of reform of an institution that certainly needs reform; that is, another place.

Finally, on reasonable time, the noble and learned Lord the Lord Chancellor gave us some typically panglossian remarks telling us how absolutely, warmly and incredibly delighted the Government were with the outcome of the Joint Committee. If the Government are so pleased with a “no change” outcome, can the noble and learned Lord say why their manifesto proposed change in the first place? Why did they put codification of the conventions of your Lordships’ House in their manifesto, which the

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committee has concluded, quite rightly, is neither practical nor desirable? If they now so approve of the report, why did they put in their manifesto the idea of introducing a guillotine for the first time ever into your Lordships’ House? The 60-day guillotine was never justified or needed, so I very much welcome the committee's rejection of the statutory guillotine and I trust that that pernicious idea will not again see the light of day.

The Joint Committee suggested that a new symbol might go by the name of any Bill on the list that has lasted more than 80 days, which, no doubt, the Procedure Committee could look at. During the previous Session we would have marked the Fraud Bill—122 days; the Commissioner for Older People (Wales) Bill—99 days; the Company Law Reform Bill—100 days; the Consumer Credit Bill—89 days; and so on. None of them was held up by your Lordships’ House. Most of them were held up for business management reasons by the Government. Would the Government have sped up with an 80-day signal? Or might it have worked the other way with the Government trying to curtail discussion on, for instance, the massive Companies Bill? This is not a hugely controversial issue, but Parliament should be very wary of giving the Government a stick with which to beat this House, however light.

The problem is that, happy though the noble and learned Lord the Lord Chancellor says he is with this report, some of us suspect, unworthy as we are, that the Government did not set up the Joint Committee expecting to be delighted by the outcome. They expected to be delighted by quite another outcome, but they did not reckon with the independence and the wisdom of the noble Lord, Lord Cunningham, and his committee. The Government planned to limit the role of this House, and this report has prevented them. It is good to see Parliament becoming more jealous of its own powers and doing so on a partisan basis. I am sure that it will be just as cautious in signing up for the next set of proposals for change from the noble and learned Lord the Lord Chancellor. I think that we can all agree that we have interesting times ahead. So long as we look to uphold the independence and authority of this great House, as has the Joint Committee, we will not go far wrong.

7.13 pm

Lord Falconer of Thoroton: My Lords, I agree with everyone who has said that this has been a significant and important debate. Listening to the debate, I do not think that anyone disagreed with the conclusions of the report of the noble Lord, Lord Cunningham of Felling. I thought that the noble Lord, Lord Trefgarne, was doing so when he said that he thought that the Salisbury/Addison convention should be revisited, which is what I thought that the committee chaired by the noble Lord, Lord Cunningham of Felling, had done. I took comfort from the noble Lord, Lord Beaumont of Whitley, who said that everyone in this House knows what they are talking about. The noble Lord, Lord Trefgarne, went on to say that he broadly endorsed the conclusions of the report, so I take him as endorsing the conclusions.



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I thought that the noble Lord, Lord Strathclyde, was disagreeing with some bits of the report but, again, I listened closely and he appeared to be endorsing it as well. We should not underestimate the achievement of the committee chaired by the noble Lord, Lord Cunningham of Felling. I have been in this House for 10 years and there have always been disagreements precisely about its conventions and practices. It is a remarkable feat, first, that they were put down in a document and, secondly, that everyone has agreed. Every speaker in this debate has gone short on the maximum length of time, which is a very strong indication that we as a House are completely agreed on the conventions of this House.

The noble Lord, Lord Strathclyde, sought to tease me and say, “You must be disappointed in the report that you have”. We most certainly are not disappointed. In my view—which is the view that the House has given in this debate—we have got an authoritative view of the conventions and practices of this House, which is what we always wanted. We completely agree with what the noble and learned Lord, Lord Howe of Aberavon, said, because the noble Lord, Lord Cunningham of Felling, suggested it. We should not seek to codify, legislate or write down in an overlegalistic way. I believe that the conclusion to be drawn from this debate is that the House is very pleased with the report. The House chimes in well with what the noble Lord, Lord Cunningham of Felling, has said, and we should accept it and adopt it. There was not one dissenting voice. We should not underestimate the historic importance of this.

I should say to the noble Lady, Lady Saltoun of Abernethy, that it is not the suggestion of the noble Lord, Lord Cunningham of Felling, that the convention should be called the Cunningham convention. My knowledge of him makes it clear to me that he has no Pinochet ambitions of any sort. It is the proposal of the Government. It is not with a view to rewriting history, but recognising what the committee is saying when it says that we have moved on from Salisbury/Addison.

Lady Saltoun of Abernethy: My Lords, I did not suggest that the report said that it should be called the Cunningham convention. I suggested that the report said what it said, which I did not like very much. It is a great pity to do away with the old name, which is the history of the convention.

Lord Falconer of Thoroton: My Lords, the committee proposes a new name. We suggest that it should be a different name. This does not go to the substance. It is very important that as time goes on we agree on what we call it, but that may not be as important as what it is, on which we agree. I shall deal with a few detailed points and then turn to the only area of disagreement. First, the noble Lord, Lord Wallace of Saltaire, suggested that the report said that there should be a business committee. It referred to that as part of the evidence, but it was not part of the proposal.


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