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5.30 pm

Lord Elton: My Lords, I will make one more important acknowledgement that is not always made. I do not know how this was brought about, but from the Back Benches it appears that the noble Baroness has some influence among her senior colleagues on the Front Bench opposite, with the result that we had a very generous allocation of time in the early stages of the Bill, which made the amity and concord possible because we have not always been working under pressure of the sort that one has come to expect when major legislation is brought through. I am very grateful that this amount of time has been allowed and I hope that this may be done again in future.

Lord Ramsbotham: My Lords, as one of the "liaison" Cross-Benchers, I associate those of us involved in the Bill with all the remarks that have been made. In particular, I echo what the noble Lord, Lord Hunt, said. I have benefited hugely from the help of the researchers in the two offices, and I know that my colleagues feel the same. I am extremely glad that they have been mentioned, because too often it is left unsaid.

The Bill has been an experience. I do not pretend that I am entirely happy with everything that is going forward, because we probably never are when we look at something that needs so much attention. However, the improvements that have been made are down to the fact that everyone has seemed to be working together rather than against each other on the Bill, which must be in the spirit of the House. In particular, one must thank the Minister and her Bill team for the way in which they have co-operated, listened and helped. It is a model of how these things should be done.

Baroness Howe of Idlicote: My Lords, I will add a tiny word about how pleased I am with these four amendments, which have hardly been mentioned. They have addressed very important points. As others have said, the teaching unions have made their position clear and strongly support this. The way in which we consider the well-being of the child is crucial, but equally important is the well-being of the staff, and saving them from vexatious and other forms of unnecessary criticism. There must be ways in which things that go wrong are notified, known about and put right. However, the amendments in this group are absolutely right and I am very much in favour of them.

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As someone who prefers to call themselves a Back-Bench rather than a "liaison" Cross-Bencher and who has taken part in debates on the Bill, I say that we have a star on our side in my noble friend Lord Ramsbotham. I hope that he will forgive me for saying that and is not blushing. I am also very sad that we are losing the noble Baroness, Lady Sharp. There are plenty of very able Members on the Lib Dem Benches who can take over, but perhaps not with her experience, which is still going on-she brings such experience and expertise, and I and many others have learnt a tremendous amount from her each time she has risen to speak. I shall miss her enormously and I am sure that many other noble Lords will, too.

Lord Lucas: My Lords, I approve of the amendments in this group, which are well judged. I will add three words to what my noble friend Lord Hunt said. The first is intended to comfort the noble Lord, Lord Ramsbotham. Even when one is on the Front Bench in government, one is not often entirely happy with the Bills that one is taking through. Secondly, I say, via the Front Bench opposite, that I have not come across such a helpful Bill team before-they have been an immense support to a lonely Back-Bencher. It is enormously appreciated, and they have even gone so far, in taking seriously my concerns and those of the Liberal Democrats over what was Clause 138, that they have upset my Front Bench, which has given me particular pleasure. Lastly, I, too, shall miss the noble Baroness, Lady Sharp.

Baroness Sharp of Guildford: My Lords, I thank all noble Lords who have paid tribute to my work in the House over the past 10 years as a Front-Bench spokesman on education. Ten years is long enough and it is about time that I took a Back-Bench seat. I shall remain interested in these issues and speak from the Back Benches on them. The model that I have in my head is that of the noble Baroness, Lady Perry, who was a Front-Bencher and now speaks with great authority from the Back Benches. If I can emulate her, I shall do so. I also add my thanks to the team of Ministers-the noble Baroness, Lady Morgan, and the noble Lord, Lord Young-and the Bill team. I have never before worked so closely with a ministerial team and we have succeeded in improving the Bill. It was a very messy Bill to start with and remains in some senses a messy Bill, but I hope that it is an improved Bill.

The Deputy Speaker (Lord Geddes): My Lords, as the noble Baroness, Lady Howe of Idlicote, has reminded the House, we have not yet reached the question of whether the Bill do now pass. We are considering Amendment 33.

Amendment 33 agreed.

Amendment 34

Moved by Baroness Morgan of Drefelin

34: Clause 245, page 152, line 20, at end insert-

"(4A) A procedure under subsection (1) must include provision to the effect-

(a) that a person ("R") who would otherwise be required by the procedure to report an incident to a parent must not report it to that parent if it appears to R that doing so

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would be likely to result in significant harm to the pupil; and

(b) that if it appears to R that there is no parent of the pupil to whom R could report the incident without that being likely to result in significant harm to the pupil, R must report the incident to the local authority (within the meaning of the Children Act 1989) within whose area the pupil is ordinarily resident.

(4B) In deciding for the purposes of provision made under subsection (4A) whether reporting an incident to a parent would be likely to result in significant harm to the pupil, R must have regard to any guidance issued by the Secretary of State about the meaning of "significant harm" for those purposes."

Amendment 34 agreed.

Clause 246 : Recording and reporting the use of force in FE colleges: England

Amendments 35 and 36

Moved by Baroness Morgan of Drefelin

35: Clause 246, page 152, line 42, leave out "or over)" and insert "or over or provision made under subsection (4A) applies)"

36: Clause 246, page 153, line 7, at end insert-

"(4A) A procedure under subsection (1) must include provision to the effect-

(a) that a person ("R") who would otherwise be required by the procedure to report an incident to a parent must not report it to that parent if it appears to R that doing so would be likely to result in significant harm to the student; and

(b) that if it appears to R that there is no parent of the student to whom R could report the incident without that being likely to result in significant harm to the student, R must report the incident to the local authority (within the meaning of the Children Act 1989) within whose area the student is ordinarily resident.

(4B) In deciding for the purposes of provision made under subsection (4A) whether reporting an incident to a parent would be likely to result in significant harm to the student, R must have regard to any guidance issued by the Secretary of State about the meaning of "significant harm" for those purposes."

Amendments 35 and 36 agreed.

Clause 261 : Orders and regulations

Amendments 37 to 42

Moved by Baroness Morgan of Drefelin

37: Clause 261, page 163, line 24, leave out "subsection (6)" and insert "subsections (6) to (6B)"

38: Clause 261, page 163, line 30, at end insert-

"(za) regulations under section 1(5);"

39: Clause 261, page 163, line 33, at end insert-

"(ca) an order under section 140(1);"

40: Clause 261, page 163, line 37, at end insert-

"(6A) Subsections (5) and (6) do not apply to a statutory instrument which contains only-

(a) an order revoking an order under section 140(1), or

(b) an order amending an order under section 140(1) for the purpose only of removing a qualification or description of qualification from the application of the order.

(6B) A statutory instrument within subsection (6A) must be laid before Parliament."

41: Clause 261, page 163, line 38, at beginning insert "Subject to subsection (7A),"

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42: Clause 261, page 163, line 41, at end insert-

"(7A) A statutory instrument which contains (whether alone or with other provision) regulations under section 2(5) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, the National Assembly for Wales."

Amendments 37 to 42 agreed.

Schedule 2 : LEA functions: minor and consequential amendments

Amendments 43 to 45

Moved by Baroness Morgan of Drefelin

43: Schedule 2, page 171, line 39, leave out ", 507B and 562H" and insert "and 507B"

44: Schedule 2, page 171, line 41, leave out "section 18A" and insert "sections 18A and 562H"

45: Schedule 2, page 171, line 42, leave out "that section" and insert "those sections"

Amendments 43 to 45 agreed.

Bill passed and returned to the Commons with amendments.

Fast-track Legislation: Constitution Committee Report

Copy of the Report Vol I
Copy of the Report Vol II

Motion to Take Note

5.37 pm

Moved By Lord Goodlad

Lord Goodlad: My Lords, this is a welcome opportunity to debate the 15th report of the current Session by your Lordships' Select Committee on the Constitution, which is entitled Fast-track Legislation: Constitutional Implications and Safeguards. I thank the Leader of the House for her role in arranging the debate, and for her presence this afternoon.

The report of your Lordships' committee was published on 7 July and the Government response issued on 3 November-sadly, almost two months late. Consequently, it could not be considered at the most recent meeting of your Lordships' committee. The committee is disappointed at the lateness of the Government's response, but grateful for having received it.

As noble Lords are aware, the committee reports to the House on, among other matters, constitutional aspects of the legislative process. In the report of July 2008 on the Criminal Evidence (Witness Anonymity) Bill, the committee noted that the Bill was the third in a short time in which the parliamentary passage had been expedited-Parliament's usual procedures set aside, circumvented and avoided-following similar treatment for the Northern Ireland (St Andrews Agreement) Bill in March 2007 and the Banking (Special Provisions) Bill in February 2008.

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The committee's decision to inquire into the constitutional issues that may arise where there is expedited passage of legislation through Parliament was animated by a wish to affirm the importance of the legislative process, to uphold it and, if possible, to improve it. Concerns about arcane parliamentary procedure were absent from our minds.

During the course of the inquiry, the report of which we are now debating, the Northern Ireland Bill and Parliamentary Standards Bill were both fast-tracked. I recollect Tony Benn saying in the other place-I am sure that he will forgive me for paraphrasing his words, which I cannot recollect exactly-that when the Front Benches agree something in private, that is the time at which Parliament should be at its most vigilant.

Surprisingly, little if any attention, either academic or parliamentary, has previously been addressed to the practice of fast-tracking legislation. The noble Baroness the Leader of the House has generously described your Lordships' committee's report as an invaluable stocktaking. The committee's decision to use the expression "fast-track legislation", rather than "emergency legislation", was carefully considered and the reasons rehearsed in paragraphs 10 to 12 of the report. There is a very clear distinction between legislation necessitated by an emergency and the truncation of Parliament's procedures in pursuit of fast-track legislation for other reasons, including the convenience of the Government.

The committee is obliged to all who gave evidence. Both Houses of Parliament are responsible for the legislative process. Chris Bryant, the then Deputy Leader of the other place, was most generous in sharing his perceptions with us, as was the Clerk of the House of Commons in written evidence. The committee and, I believe, your Lordships owe particular gratitude to Professor Andrew Le Sueur of London University, who was the specialist adviser to the committee for the report and also the legal adviser to the committee from 2005 until a few months ago. His advice and wisdom have been invaluable.

In paragraph 16 of the report before your Lordships, the committee has recommended five principles which in our view should be applied to the scrutiny of fast-track legislation: first, that effective parliamentary scrutiny is ensured; secondly, that the quality of legislation is maintained and improved; thirdly, that affected persons and bodies are allowed the opportunity to influence the legislative process; fourthly, that the legislation is a proportionate, justified and appropriate response to the matters which it seeks to address, and that constitutional rights and principles are not jeopardised; and, fifthly, that the transparency of policy-making within government and in the legislative process is maintained.

The committee made a number of recommendations, of which I shall very briefly remind your Lordships. The committee's view was that fast-tracking should occur only in exceptional circumstances. Our principal recommendations are contained in Chapter 6 of the report and are as follows. First, where fast-tracking is proposed, a Minister should make an Oral Statement to your Lordships' House outlining the reasons for the

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proposed fast-tracking and the reasons should be included in the written Explanatory Notes to the Bill. The reasons given for fast-tracking should be distinct from those for the policy pursued in the Bill. The Statement, which should be debated by your Lordships' House, should explain the Government's reason for proposing fast-tracking, what efforts have been made to allow the maximum time for parliamentary scrutiny, how stakeholders have been given the opportunity to influence the policies proposed, whether the Bill includes a sunset clause, whether post-legislative scrutiny is guaranteed, whether an assessment has been made of whether existing legislation covers the issues addressed by the Bill, and whether the relevant parliamentary committees in both Houses have been given the opportunity to scrutinise the legislation.

Your Lordships' committee recommends that the Government should provide for the pre-legislative scrutiny of fast-track legislation by consulting the relevant parliamentary committees and stakeholders prior to the first Second Reading of the Bill, in whichever House it occurs. We further recommend that there should be a presumption that fast-track legislation will receive early post-legislative scrutiny and be subject to a sunset clause, the terms of which should be explained in the ministerial Statement to this House.

Noble Lords are aware that our Standing Order 47, which precludes more than one stage of a Bill being considered on one day, can be debated and voted on in the event of the Government seeking to suspend the order. The committee recommends that if the principles and recommendations enunciated in the report which I have summarised are not met, your Lordships should decline to support a Motion to suspend Standing Order 47.

It is my belief, and I think that of most of your Lordships, that very few people in this country want what the late Lord Hailsham called "an elective dictatorship". I hope that the noble Baroness the Leader of the House will be able to tell your Lordships that the Government accept the committee's recommendations. I beg to move.

5.47 pm

Lord Rowlands: My Lords, it is a great pleasure to follow the noble Lord, Lord Goodlad. It has also been my pleasure to serve on the committee. As my time on it will come to an end at the end of this Session, I particularly thank the noble Lord for the pleasure of serving under him as chairman. I am also grateful to have had the parliamentary pleasure of being on the committee: it has done great work in servicing the House and in advising it on Bills in particular but also, of course, on general issues such as this.

I, like, I suppose, everyone else in the House, was brought up on the basic principle that the parliamentary scrutiny of legislation was fundamental to Parliament's purpose and task. It was a parliamentary duty. Indeed, Locke, the great late-17th/early- 18th century political philosopher, called it a sacred duty. Blackstone, the 18th century constitutionalist who usually went over the top, described Parliament as a sovereign and uncontrollable authority in making, confirming, enlarging,

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restraining, repealing, reviving and expounding laws, concerning matters of all possible denominations, it being,

I think that that is rather over the top. In fact, during the hours and hours that I spent sitting on Benches in the other place trying both to participate in the legislative process and to listen to it, I never felt that absolute despotic power coursing through my veins, nor did I ever feel that Governments were quaking at the threat of such a despotic power. Nevertheless, throughout my parliamentary career I sensed that Governments did feel, and Parliament managed to convey to Governments, that they had to work for their legislation. They had to spend time getting the Bills through. They had to sweat for their legislation, if need be. That was the unspoken convention: you had to work your time and justify at some length and even through parliamentary attrition the case for a Bill.

It was amazing to come to this place and find that that spirit is still very much alive and that my noble friends on the Front Bench have indeed to work hard and sweat to get Bills through. We have just passed a Bill of 262 clauses and 16 schedules, carried through the House by Ministers with scrutiny from all sides of the House, unregulated, uncontrolled by any form of parliamentary restriction or timetable.

It is true that in the other place, since the 1880s, Governments have had the power to apply to limit or curtail the parliamentary proceedings on legislation through the guillotine. Even then, if one looks at the record of that guillotine procedure, one sees that it was traditionally used very sparingly. I was astonished to find, for example, that in the whole of the great Parliament of 1945 to 1950, which passed some of the most radical legislation through the House of any time, only three Bills were guillotined. Throughout the 1950s and early 1960s, the average would be one or two Bills a Session. In my first Parliament in 1966-70, the proceedings on only five Bills were curtailed by guillotine.

In the 1970s and 1980s, Governments resorted more and more to the guillotine procedure, but even then I sensed-others in the House may testify to this-that there was an unwritten convention that Ministers had to do time before they could come to the House to get the guillotine procedure. They had to do time in Committee. I think that the going rate was about 80 hours a Bill in Committee. It was only then that you could honourably ask the House for a guillotine.

So there has been a great deal of self-restraint even when, as in the other place, the House had power to limit debate. Now, everything has been changed by the introduction of programme Motions, which are newfangled things as far as I am concerned, because I was not in the House when they were introduced properly. Nevertheless, there has been a long-standing tradition of genuine acceptance of the fact that there must be constraint-even though Governments obviously had the right to get their legislation through, they had to do it with considerable care and had to work to achieve it.

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