Let me turn to the options. As far as I am concerned, I have already ruled out firmly option 1. Other people have already explained that option 2 has its shortcomings. I tend to favour option 3, but with considerable caveats. Unfortunately, in his excellent report my noble friend failed to give any detail as to how the option might be implemented, and that is absolutely key to whether it will work well or not. I think he suggested that it might be considered by the Procedure Committees of both Houses, if I remember correctly, but I think we need considerably more than that.
Perhaps I may put forward a few suggestions, which no doubt will be fired upon and lost. If the House of Lords decides that it does not want or disapproves of a statutory instrument, a committee should be set up to set out the reasons—this is used in other matters—which would then be sent to the House of Commons and the relevant Minister. The Minister would be required to formulate a Written Statement setting out his views on whether he agreed or whether there should be a modified statutory instrument. Built into it, there should also be some time delay to make sure that the House of Commons had the opportunity to consider it and have a full debate.
Those would be my suggestions. No doubt fault will be found with them, but I am not going to go for option 3 unless I am pretty sure that it will be a useful and practical solution.
6.10 pm
Lord Darling of Roulanish (Lab) (Maiden Speech): It is a pleasure to follow the noble Baroness, who makes some very trenchant criticisms of the way in which statutory instruments and legislation are dealt with. It is a pleasure, too, for me to have this opportunity to deliver this my first speech in your Lordships’ House.
I had not expected to end up here, but it was a great pleasure to meet so many people whom I have not seen for, in some cases, many years. I particularly thank my noble friends Lord Bradley and Lady Armstrong who introduced me to the House just before Christmas. The three of us were elected on the same day in 1987 and we have known each other for a long time.
I am grateful to the officers and staff of this House for all their help in what turned out to be a long and arduous process of getting from nomination to arriving here a few weeks ago. I am also grateful for the warm remarks made by the noble Lord, Lord Strathclyde, and my noble friends Lady Smith and Lady Hollis, who indeed toiled with me in the vineyard of tax credits some years ago.
I know that, rather like in the other House, the first speech should be uncontroversial and should not be phrased in such a way that it would provoke someone to stand up in outrage at anything I may say. Despite the subject, I shall try not to be controversial. I start off in that vein by saying that I come at this from the experience of having spent nearly 28 years in the other House, 13 of which were in government. I understand fully the frustrations of being a government Minister in a Government who get turned over in this place rather more often than one would wish. As a member of the Opposition for almost 15 years, I understand, too, the concern when opportunities to hold the Government to account are being taken away.
Obviously, the merits of tax credits were discussed last October when I was not a Member of this House. Suffice it to say that there has been some debate today about exceptional matters. That depends on where one stands in all this. The nature of tax credits is that they are designed to support the income of people who would otherwise be on a very low wage. It is not dissimilar, philosophically, from universal credit, which the Government are somewhat struggling to implement. From the point of view of the people who stood to lose very substantial sums of money, this was an exceptional measure. As I understand it, exceptional measures do not happen that often in relation to tax credits. Therefore, to react without giving the whole matter proper consideration might simply store up other problems for the future. So I hope that the House will reflect on that.
Speaking as someone who served in government for 13 years, the substantial point is that it is no bad thing that the House of Lords has the opportunity to revise legislation and to say that, no matter how inconvenient or uncomfortable it may be to the Government of the day, they should go back and think about the matter again. This is particularly apposite in relation to tax credits. I sometimes reflect that Members of the government party in the other House might be profoundly grateful for being spared several months of being, quite rightly, harangued by their constituents who would have lost substantial sums of money.
I am sure that my successor as Chancellor, perhaps in his private moments, is also very grateful. I am almost certain that he would have been bound to have had to reverse the measure at some point. I have been there before. I had to deal with the consequences of our decision to abolish the 10p rate of tax and, a decade
and a half ago, when we raised pensions by rather a small amount. Without wishing to remind my colleagues of that pain, I know what it is like to make a decision and then look at it and think, “Well, perhaps I should have done something different”. The present Chancellor was given the opportunity to change his policy. In the Autumn Statement, he said that, having looked at it—remember that at that time the sun was shining on our economy, although I understand that clouds have subsequently arrived to make the outlook less rosy than it was last December—he did not need to do it. It is a classic case of where the House of Lords said, “Think again”, and a lot of people, perhaps silently, have said, “Yes, I am glad that we did”. But it turned out that the Government said that they did not actually need to introduce the measure.
I make the point that if you take away or restrict the opportunity to revise, the obvious problem will arise that Parliament—I use that term advisedly—will pass, on occasions, legislation which has unintended consequences, or sometimes consequences that are very adverse on the population which looks to Parliament to protect its interests. I understand that when I was in the Government what we proposed was defeated in the House of Lords on nearly 500 occasions. That may have been on a temporary basis but on a number of occasions we had to think again. When you are making policy, you just have to take it on the chin. You have to ask yourself, “Can I get this through the House of Commons? Can I get it past a Select Committee? Can I justify what I am doing in front of a Select Committee for a couple of hours without stumbling? Can I get it through the House of Lords?”. It is important to do that.
I fully accept some of the criticisms made of statutory instruments. There are far too many of them. They are an easy way out for Ministers. In relation to tax credits, I have every sympathy with what the noble Baroness, Lady Williams, and the noble Lord, Lord Jopling, said as to why on earth was this not introduced by primary legislation. That is where it should have been introduced because it was an issue of some principle.
My conclusion is twofold. The need for revision and for questioning of the Executive is essential. I live in Edinburgh, where the Scottish Parliament is getting more and more powers. It is unicameral. It was never designed to be run by one party. As that Parliament gets more and more powers, the lack of questioning and scrutiny will become an increasing problem. We should bear that in mind.
Finally, as the noble Lord, Lord Empey, said, I am increasingly concerned at the amount of constitutional change that is taking place in this country on a piecemeal basis. The Scottish Parliament is getting more and more powers, including complete power over income tax very shortly. The imbalance of devolution in the United Kingdom is becoming a real problem. The whole concept of English votes for English laws is fraught with difficulties, particularly if you get into something that undermines the fiscal union that underpins the political union in this country. Other Members have referred to other measures. I know that reform of the House of Lords is difficult. I can understand why the Prime Minister and all his predecessors said, “Look,
forget this. Let’s leave it for another day”. Yet, every year we do a little bit more. If it is not looked at as a whole, one day the whole thing will topple over. Outside, people may say, “Hurrah to that”, but it would be far better for us to look at this and come up with a sensible way to scrutinise and revise legislation, and to make sure that we have a Parliament which reflects what people want, especially at a time of growing dissatisfaction and alienation from our current political structures. It cannot be put off for much longer.
I hope that the House will think further about this, so that it does not look like a political fix and perhaps resembles a more considered view as to what we need as a second Chamber in the 21st century.
6.18 pm
Lord Hope of Craighead (CB): My Lords, it is a very real pleasure for me to congratulate the noble Lord, Lord Darling, on his fascinating—indeed, outstanding—maiden speech. It is, of course, a much easier task for me than it would be for a shadow Chancellor to try to reply at short notice to one of his speeches from the Front Bench in the other place. At least I have that advantage. I can look back over the noble Lord’s career for over 40 years, ever since he joined the Faculty of Advocates, of which I was already a member, in 1984. For a time he was a member of a remarkable group of members of that body, which included the late John Smith, the noble and learned Lord, Lord Wallace of Tankerness, and the noble Lords, Lord Campbell of Pittenweem and Lord Selkirk of Douglas, who sought to combine practice at the Scottish Bar with politics. He was already a member of Lothian Regional Council, if I recall correctly, when he joined the faculty. Not long after that—I think within three years—he became a Member of the other place for an Edinburgh constituency. That led to a decision, for very good reasons as we now all know, to give up a future career in the law and instead move into politics. It is as a result of that that he comes to this House with a remarkable fund of knowledge and experience. We also owe him an immense debt of gratitude for the work he did as leader of the no campaign in Scotland last year. It was an outstanding service to the country, appreciated very much in this House. It is against that background, too, that we all welcome him to our number. I am sure that we all look forward very much to many contributions from him on that subject and others.
I shall say a few things about the review by the noble Lord, Lord Strathclyde, not in my capacity as Convenor, but in my personal capacity. I begin by drawing attention to points made by the noble Lord, Lord Butler of Brockwell, who unfortunately cannot be here to speak himself, on 17 December last year in reply to the Leader’s Statement on the publication of the review. He pointed out that for many years now there has been dissatisfaction in all parts of the House with the binary choice available to us for either accepting or rejecting statutory instruments. He was speaking, after all, with some knowledge, because he was a member of the commission under the noble Lord, Lord Wakeham, which reported on that issue as long ago as 15 years, and of the Leader’s Group under the
noble Lord, Lord Goodlad, which reported a year later. For that reason, he encouraged us to look positively at the proposals as pointing the way forward to resolve a problem that has been with us for far too long. He urged us not to be diverted by the circumstances that gave rise to the review, but rather to concentrate on the way forward. He emphasised, as other Members of the House have today, that the problem is one of long standing that needs to be resolved, and the sooner that happens the better.
Of course, a balance has to be struck. I welcome the careful attention that the noble Lord, Lord Strathclyde, gave to the work of the scrutiny committees—both the Joint Committee and the committee of this House—and that work’s importance. It is vital that it should continue. Of course, for that reason, option 1 is not one that anybody in this House can take seriously at all. To add to the point that others have made, I draw attention to a memorandum that the noble and learned Lord, Lord Walker of Gestingthorpe, sent to the noble Lord’s review, in which he drew attention to some important examples of the use of statutory instruments that now have statutory authority. We have moved far away from the primary purpose of delegated legislation, as set out on page 667 of Erskine May, which is to deal with,
“details of an essentially subsidiary or procedural character”.
The noble and learned Lord gave two examples of that, one from the European Communities Act 1972, where, in Section 2 and Schedule 2, provision is made for remedial legislation to cure incompatibility with convention law; and the other from Section 10 of and Schedule 2 to the Human Rights Act 1998, to deal with incompatibility with convention rights. A mechanism is a statutory instrument. It really would be absurd if this House, in dealing with issues of considerable difficulty and, indeed, possibly constitutional importance, could not comment on and examine them.
I shall say nothing about option 2, except to endorse the point that the noble Lord, Lord Jopling, made, that it really would be a recipe for continued argument. We really do not want that any more.
So we are left with option 3, which certainly has its attractions and which I, for my part, would endorse, but certainly there is more work to be done. I shall mention just one or two points. First, I welcome the point that the noble Lord, Lord Strathclyde, made about the need for clarity over what amounts to a denial of approval. We simply do not want to go through the kind of arguments that we had last term on that point. Although there may be difficulties about a fixed period, it is crucial that we have clarity as to what happens next if the thing goes to the other House. We really need to be sure that something proper will be done, that proper scrutiny will be given and, furthermore, that good reasons are given by the Executive if the decision is to reverse the decision of this House.
I endorse the point that others have made, in particular the noble Baroness, Lady Bowles, about amendment. Amendment has a great value. If you make an amendment it focuses the point of dispute. It requires an answer designed to deal with the particular point raised by the amendment. I hope that that point can be taken very seriously.
Lastly, I go back to the point that the noble Lord, Lord Empey, raised. He drew attention to what would happen if the reform takes the form that option 3 suggests. I think that the noble Lord, Lord Strathclyde, has played down the extent to which use would be made of that option. If given legitimacy, I am sure people would begin to use that route. I am not as pessimistic as the noble Lord, Lord Empey. I do not think that it would be overused, but it would be unwise to assume that it would not be used. I suspect that it would be used quite frequently in circumstances where, in the past, quite rightly, we have shrunk back from something that would, in effect, run the risk of contravening a convention of which we were rather uncertain.
6.25 pm
Lord Norton of Louth (Con): My Lords, the review undertaken by my noble friend Lord Strathclyde may be pointing us in a direction that is worth pursuing, but for very different reasons from those advanced by my noble friend and not in the way recommended in his report. Our debate, following my noble friend’s report, has tended to focus on whether the House, by its vote on 26 October, broke a convention of the constitution. We are in danger of getting into a muddle. There has been no attempt to define what we mean by “convention”. The Joint Committee on Conventions did not offer a definition. My noble friend in his report offers a definition that is not incorrect, but it is incomplete.
There is much misunderstanding of what we mean by constitutional convention. Conventions are non-legal rules that determine a consistent, indeed invariable, pattern of behaviour. Those who comply with them do so because they accept that they are, as David Feldman has cogently expressed it, “right behaviour”. Conventions do not become such by the words of a particular person, be it Viscount Cranborne in 1945 or Lord Sewel in 1998. They are not created, but develop. A convention exists once there is an invariable practice. Kenneth Wheare distinguished between conventions and usage—in effect, a distinction between invariable and usual practice. The Cranborne doctrine of 1945 developed into the Salisbury convention. The statement of Lord Sewel developed into a convention named after him, even though the convention is such only by departing from the words that he used. It is a convention because seeking a legislative consent Motion is an invariable practice.
It is our usual practice not to withhold agreement to statutory instruments, but it is not our invariable practice. As we have heard, the House has asserted its right to reject statutory instruments and has on occasion exercised it. This House therefore does not regard itself as bound, and has not been bound, by a moral imperative that we should not reject statutory instruments. So long as that is the case, there is no convention. The Joint Committee got itself into something of a confusion on this issue, partly because of a failure to define conventions, but it recognised that no convention was breached if the House defeated a statutory instrument. As it reported at paragraph 228:
“The Government appear to consider that any defeat of an SI by the Lords is a breach of convention. We disagree”.
The fact that there is no convention is borne out by the words of my noble friend in the course of asserting that there is. My noble friend’s report states on page 15:
“The convention that the House of Lords should not, or should not regularly, reject SIs is longstanding but has been interpreted in different ways, has not been understood by all, and has never been accepted by some members of the House”.
The very wording draws attention to the absence of any agreement on what this supposed convention constitutes. Some Members, like my noble friend, may believe that there is a convention but, for it to be one, Members generally have to consider themselves bound not to vote down SIs. There is no such acceptance by the House. There was thus no breach of convention in respect of how this House deals with statutory instruments. That was not the problem. The problem derives from the fact that we exercised our power in respect of a statutory instrument that engaged the financial privilege of the Commons. The key section of my noble friend’s report is to be found on pages 21 and 22. That should have been the focus of his report. As my noble friend recognises, there is nothing to stop us developing procedures particular to delegated legislation that cover financial privilege.
I am not against reviewing our powers in respect of statutory instruments, but I take the view that if our powers in respect of delegated legislation are to be restricted, the powers should at least be analogous to those provided in the Parliament Acts in respect of primary legislation. My noble friend’s recommendation in favour of option 3 claims on page 18 that it is, but then admits, on page 20, that it is not, since there would be no suspensory veto. If we are to go down the route recommended by my noble friend, there needs to be something else built into the procedure to ensure that the reasons for objecting to an SI are taken seriously. I therefore endorse what several others noble Lords have argued—in other words, what may be termed option 3 plus.
In short, while I think that my noble friend’s report has come up with some stimulating proposals, it derives from a false premise and comes up with recommendations not geared to the mischief that prompted my noble friend’s inquiry. In the short term, there is a case for acting in respect of SIs that engage the Commons supremacy in respect of tax and spending. In the longer term, as several noble Lords have said today, there is a case for a substantial review of how we deal with statutory instruments. We have had recommendations from the Wakeham commission and the Goodlad committee. There is also a report on the subject produced by the Hansard Society, which has made the case for revisiting how Parliament as a whole deals with secondary legislation, recognising the limitations of the other place. Rather than a rushed quick fix, a more holistic approach is the way forward.
6.32 pm
Lord Cunningham of Felling (Lab): My Lords, first, I apologise for the state of my voice. Secondly, as the first speaker from this side of the House to follow the incisive and commanding maiden speech of my noble friend Lord Darling, I think I speak for the whole House when I say that we look forward to hearing him on many more occasions.
I begin by quoting from the preface of the report of the noble Lord, Lord Strathclyde, in which he states:
“Conventions exist because they provide a basis for orderly government. They will survive only so long as there is a continued understanding of why they were originally brought into being. But when they go, Parliament and the people we serve will, I believe, come to miss their value”.
Yet he goes on to recommend just that—the abolition of the convention—in his report. I make it clear to your Lordships’ House that statutory obligations are not the same as conventions; they are entirely different. Therefore, the convention would go if the only one of the recommendations of the noble Lord, Lord Strathclyde, worth considering—that is the third one: I do not think the other two are worth considering at all—were enacted just as it stands, and we would be left in almost as big a morass of uncertainty as, apparently, some people claim we are now. I am sure that none of us wants that.
The noble Lord, Lord Strathclyde, has adopted many different positions on the convention. In 1999, he declared that it was deceased. He said that the convention on statutory instruments was dead. By 2005, he had given it the kiss of life, and said that it had been,
“surprisingly robust over the decades”.—[
Official Report
, 26/01/2005; col. 1375.]
Those two statements cannot be reconciled. However, the reality is that, whatever his personal views, between the votes on the Greater London Authority orders in 2000 and the end of the 2004-05 Session, this House divided nine times on Motions potentially fatal to a statutory instrument. On three of those nine occasions, the Motion to annul was moved from the opposition Dispatch Box, so there is no doubt at all—as the record shows—that whatever any individual thought about the convention, there was an attempt to use it on those occasions. There were no cries of a constitutional crisis then. There were five rejections in all under this convention in about five decades; three of them, incidentally, were defeats for Labour Governments. One was a defeat for the coalition Government and one—the most recent one—was a defeat for the current Administration.
This is not to say that we do not face serious problems with statutory instruments in this House; of course, it would be foolish to deny that. However, let us be clear: if the number of statutory instruments coming to this House was cut by 50%, there would still be occasions on which strong opposition to some or other of those instruments would arise. Therefore, cutting the number of statutory instruments—I would be in favour of that and I certainly share the view of the noble Lord, Lord Strathclyde, on that, as, I am sure, do most Members of your Lordships’ House—would not obviate the problem of this House wanting to disagree with however many statutory instruments remained.
In 2006, foreseeing some of these problems, or perhaps just recognising them rather late in the day, the then Labour Government set up the Joint Committee on Conventions, which I had the honour and privilege to chair. The remarkable thing about the committee—which was made up of Members on all sides of the
House, here and in the Commons—was that all its decisions and recommendations were approved unanimously. There was not a single vote in the whole of the committee’s deliberations. Therefore, the report was unanimous, which, in turn, was unanimously approved by this House and the other place. However, here we are, 10 years later, asking ourselves more questions about how we operate. The report, which we deliberately entitled
Conventions of the U
K
Parliament
, has stood the test of time. If we want to re-examine these matters—I am certainly not against that—it is surely not sensible to do it in a piecemeal way on the back of an angry, intemperate reaction to one defeat of the Government in this House. That is not the way we should deal with this problem. Frankly, it is simply not credible to suggest that this House has abused the use of the convention on statutory instruments in any way at all. It has not exceeded its powers and I do not believe that statutory codification of these issues will improve the working of the House or improve our relations with the other place.
In reality, the Government have decided to strip this House of its ability to reject any statutory instrument because of the one defeat sustained in October last year. That strengthens the Government and the Executive against Parliament because, if it happens, it will weaken not just this House but the position of the other place as well. That is not what we should be seeking to agree to, in my opinion. The reality is—I am overrunning my time, I apologise—that this House has a far better record of scrutiny of statutory instruments than the other place. I believe that it is time we looked at this, as previous speakers have indicated, in a far more comprehensive, effective and collective way than simply to accept the diktats of the Government because of their annoyance at their defeat.
6.40 pm
Lord Higgins (Con): My Lords, I join those who congratulate my noble friend Lord Strathclyde and his team of experts on a really excellent report; it is extremely useful in setting out the position with regard to statutory instruments and, to some extent, financial privilege. I have only one technical quibble: it would have been helpful, particularly in relation to this debate, if the paragraphs had been numbered.
It is a great pleasure to follow the noble Lord, Lord Cunningham of Felling, because I had the pleasure of serving under his chairmanship on the Joint Committee on Conventions, which was a remarkable committee. As he has just said, it was unanimous, and its reports were approved by both Houses as an appropriate way forward. It is worth referring to a passage in the report of the committee concerning statutory instruments, which was quoted in my noble friend Lord Strathclyde’s report. It states:
“The Committee concluded that ‘the House of Lords should not regularly reject Statutory Instruments, but that in exceptional circumstances it might be appropriate for it to do so’. A number of specific circumstances were identified, for example, when the provisions of an SI were of the sort more normally found in primary legislation or in the case of certain specific orders”.
It went on to say that under particular circumstances, opposition parties should not simply vote against something because they had disagreed with it.
The crucial point is that one needs to put that in the context of the catalyst that gave rise to my noble friend’s report, namely the debate that we had on the tax credit order. It is absolutely clear from the passage I quoted that the convention was not breached. Quite clearly, that statutory instrument involved something that ought to have been in primary legislation. That being so, it was quite appropriate for the Opposition to take the view that it was legitimate to vote against it. The reason that I did not vote with them was because it involved financial privilege and it seemed to me that that overrode the issue as far as the convention and the ability to vote against it were concerned.
The whole issue arises from the extraordinary fact that this statutory instrument involved financial privilege to such a massive extent. I find it totally puzzling that the Treasury ever allowed this to happen. It looked as though it was trying to pull a fast one, which I do not believe was so. I can understand that the primary legislation enabled it to do that but, in political terms, not to foresee the problems that it would create in this House is, I think, quite extraordinary. We must, therefore, look at this whole issue and the report of my noble friend as a reaction to what was an extraordinary, and not a normal, situation. In that context, we need to consider our position. I had great trouble, as I said, in knowing which way to vote. There is no great problem in dealing with the financial privilege point; the simplest solution would be for the Treasury never to do the same thing again. Or it could be dealt with by the unusual procedure of being debated only by the Commons.
I come to the broader question of how to deal with the situation. I believe that the report 10 years ago had, basically, the right approach. It is not right to cite the tax credits fiasco, if I may put it that way, as a reason for saying we cannot maintain the convention. There is a lot to be said for it. My noble friend Lord Strathclyde and I share the view that conventions are better than legislation, if that can be done, although, strangely, he comes down in favour of option 3; I would prefer option 2.
We need to give this very careful consideration. Perhaps we should reconvene the committee on conventions—I am not volunteering, necessarily—to look at this issue again. There was no breach of the convention. My noble friend’s report is wrong, I think, in suggesting in a later passage that, somehow, the fact that this event took place shows how difficult it is to agree on what the conventions really are. We are fairly clear and we could in fact enumerate the various exceptions that might be appropriate. It is at least worth an attempt to do so, because it avoids legislation. I view the idea of more legislation on matters involving the House of Lords with considerable alarm. The issue of composition was cleverly avoided by my noble friend in his report by stating that it was outside his terms of reference, but that will not necessarily apply in the case of legislation. That is a dangerous and rather heavy road to go down. The report says that a Bill may not need be very long. It is not a question of whether it is long but of whether it is dangerous. That is an important point that we need to bear in mind.
There have been various comments by people outside who take a profound interest in the operation of your Lordships’ House. I noticed that Meg Russell, who
comments frequently on our affairs, suggested, perhaps optimistically, that this was a marvellous opportunity to have a negotiation on whether we should reduce the size of the House by capping our numbers in exchange for more restriction on the operation of this House. That is rather optimistic—it would certainly confuse the negotiations.
Overall, we should have a shot at option 2. I rule option 1 absolutely out of court, not least because, as my noble friend Lady Fookes said, it would affect our two extremely valuable committees that do this work that the House of Commons does not. But I think that that is a better option than suddenly rushing in on the back of an event that was controversial to legislate on this matter and to limit and control the powers of your Lordships’ House.
6.48 pm
Baroness Thomas of Winchester (LD): My Lords, ever since I joined my party’s Whips’ Office in 1977, the threat by all Governments of curbing the Lords’ power if the Opposition tried to vote down statutory instruments has been part of folklore. The threat was enough because all Governments eventually turn into the Opposition and then take a different view. It is ironic, as other people have said, that it should be a Conservative Government who are now proposing to take action, given that Conservative Oppositions have used the power far more than Labour have. As my old friend, the noble Lord, Lord Strathclyde, said in his Politeia lecture in 1999:
“Governments—all governments—are increasingly, and dangerously, insouciant about powers taken under secondary legislation … those powers are often so far-reaching that they must … undergo improved Parliamentary scrutiny. Parliament must, in turn, be ready to reject bad regulations. The new House of Lords will certainly assert that right”.
So is this Government in danger, perhaps, of becoming “insouciant” about powers taken under secondary legislation? If so, parliamentary scrutiny should be improved—as the noble Lord, Lord Strathclyde, promised —not curtailed.
I am in favour of improved scrutiny and have put forward my own proposal, also mentioned by my noble and learned friend Lord Wallace of Tankerness; briefly, it is that the substance of controversial SIs might be debated on a Motion which was amendable and on which Peers would be able to vote, while the instrument itself was parked and unaffected at that stage by votes. That two-stage procedure might enable the Government to give certain assurances, or even to withdraw and re-lay the instrument with some amendments of their own. In putting forward such a proposal, I am keen to show that I am not against a change in procedure for controversial SIs, but I am totally against legislating in this area for any diminution of this House’s power over secondary legislation. Without the ultimate threat of a veto, why would Governments with a majority in the House of Commons bother to be careful how they used their increased power? What nobody has referred to so far are the times when Governments have withdrawn an SI when the hostile Motion has been tabled. I know that from personal experience, but it will not show up in any records.
Option 3 of the review says that the Commons should have the last word. That is fine in theory but, as others have said, will that last word be a proper debate? I am full of admiration for Commons debates, but often one searches in vain for a Commons debate on an SI, only to find that there has not been one and that the SI was nodded through.
To take this whole matter forward, could we not ask our Procedure Committee to work up some of the various proposals, particularly those put in this debate, and even to conduct pilot schemes?
I end with a rhetorical question asked by the late great Lord Simon of Glaisdale, who was an expert in this field: “Do we want executive Government or parliamentary Government?”. That is still a question that we need to pose today.
6.52 pm
Lord Judge (CB): My Lords, I had a very bad night’s sleep last night. I had a nightmare in which King Henry VIII came to visit me. The monstrous tyrant had been allowed out of hell—I assure you, that is where he is—for a few weeks to read all those wonderful books by Philippa Gregory, Alison Weir and Suzannah Dunn, all of whom give his long-suffering wives rather a good press and a very bad press to him. He was so offended by it that he started looking into what we were talking about. He said, “There’s a piece of history none of you knows. You have all these wonderful books about why I cut off Thomas Cromwell’s head, but I’ll tell you the truth about it. I said to him, ‘I want the Reformation Parliament to give me an Act of proclamations’, and he said he’d get it for me. I said, ‘I want the widest powers to regulate Tudor life. A good regulatory system would really organise Tudor life better’. ‘Yes, Your Majesty.’ Unfortunately, he couldn’t get Parliament to give me control over—let me just think—inheritance, goods, chattels, liberty and all the things I really did want to control. So I had his head cut off”.
The nightmare was this: we have too many Henry VIII clauses, and we call them Henry VIII clauses because they are draconian and potentially tyrannical. Many of them come to us by way of subordinate or secondary legislation and, although we have to consider many different aspects of this debate, I want to focus on this: this debate could actually be about secondary legislation and the primacy of Parliament, because our processes—in both the House of Commons and this House—have led to a situation in which legislation is enacted which creates the most awesome powers.
Let me give you an example. I thank the noble Lord, Lord Darling, for his speech, and remind him that there was a time in 2008 when life was rather tough, so we had the Banking (Special Provisions) Act 2008. I take this example not to embarrass him—his maiden speech was absolutely delightful and wonderful—but to make the point that we are talking about all Governments. The focus is on what happened in October, when we had a Conservative Government, but it is true of all Governments and always will be unless we do something about it. The Act gave all sorts of powers to the Minister and the Treasury, including to,
“disapply … any … statutory provision or rule of law”.
Any statutory provision or rule of law? What on earth was going on there?
Let us not get too carried away with the rather important disaster that was going on. The Childcare Bill was debated here in October 2015. Who could argue with free childcare? Who could argue with regulations made for “extended entitlement”? Then you see that extended entitlement regulations may cover no fewer than 11 different subjects, including the power to “impose obligations”—notice—
“or confer powers on the Commissioners for Her Majesty’s Revenue and Customs”.
Another power that Henry VIII would not have got is to,
“create criminal offences in connection with”,
so-and-so, for which another part of the statute said that you might go to prison for two years. Another is to make reviews of a First-tier Tribunal decision—that is interfering with a court’s decision—and another is to make provision in regulation for people to be fined. Not content with no less than 11 areas where secondary legislation could be enacted, we end up with Section 4 on “Supplementary provision”, on which I will now focus. It states:
(a) confer a discretion on any person”—
“(b) make different provision for different purposes”—
well, I cannot argue about that—
“(c) make consequential, incidental, supplemental, transitional or saving provision”—
who could argue with that? Until you come to—
“(d) amend, repeal or revoke any provision made by or under an Act (whenever passed or made)”.
You know, there was a revolution here in 1688. We ended up with a Bill of Rights that made it clear that there was no dispensing or suspending power. And here we have statutory instruments capable of destroying an enactment by both Houses. So we have an interest in anything which interferes with what we have agreed to in the legislative process, do we not?
I am nearly done. I could go on. Let us take another one. We looked the other day on the education Bill at what failing schools might be. What do we provide? “Failing school”, two perfectly ordinary English words—we all understand what they mean. But there will be regulations, not for the Secretary of State to say, “You are a failing school, and for these reasons”—somebody has to decide that; I have no objection to somebody deciding it—but saying, “You, the Secretary of State, will define what a failing school is”. That is very different. That is saying, “I am the Secretary of State. I say that you are failing because I do not like this, that or the other about what is going on”.
I have done. We have to examine this problem, which has arisen from a parliamentary dispute in this House, in the context of the primacy of Parliament, so that we take a proper overall look at what we are being asked to do when we legislate.
6.59 pm
Lord Lexden (Con): My Lords, I shall hope to avoid having a disturbing and dramatic dream of the kind that the noble and learned Lord, Lord Judge,
has experienced but it helped to inspire a truly excellent speech. I follow in more mundane fashion.
Whatever the background circumstances, a defeat in this House on secondary legislation relating to a major political issue is bound to incur the wrath of a Government, regardless of their party complexion.
“Practically every newspaper confidently anticipated that the Prime Minister would announce in the House this afternoon a Bill to limit the Lords’ powers”.
That, in the words of Richard Crossman’s diary entry for 20 June 1968, is what followed the narrow defeat of the order on sanctions against Rhodesia, nearly 50 years ago. The fury died away, of course, and no legislation was brought forward. Calm was restored and sustained by conventions agreed between the parties.
The Strathclyde review is designed to provide the basis for the start of a new era. I am with those attracted by the third option for change that my noble friend Lord Strathclyde commended to us with his customary vigour. Indeed, I would always hesitate to challenge him in any way, having entered this House five years ago now with his kindly tutelage. But I am also with those who believe that any changes here need to be accompanied by changes in the other place. They need to proceed hand in hand; one should be conditional on the other.
The entire system by which secondary legislation is dealt with is the subject of an authoritative report, The Devil is in the Detail, to which my noble friend Lord Norton of Louth referred, from the Hansard Society, of which I am proud to be a trustee. It enjoyed until recently the wonderfully benign and gentle chairmanship of my personal friend the noble Lord, Lord Grocott. This detailed Hansard Society study confirms what many have readily acknowledged for years. It states:
“The scrutiny process for delegated legislation has become unnecessarily complex … most MPs simply don’t understand it … Many of the MPs we interviewed simply weren’t aware of the practicalities relating to the scrutiny of statutory instruments”.
It is that state of affairs which has made the existence of our power of veto extremely important.
The Hansard Society’s report also stated:
“The existence of a veto power gives purpose and leverage to the Lords’ scrutiny committees … Remove it, and the influence of the House of Lords will be neutered to the government’s advantage unless steps are also taken to improve scrutiny … by the House of Commons”.
That is surely the nub of the matter. Without improved scrutiny arrangements in the Commons, it is very hard to see how the third, preferred option in the Strathclyde review will really advance the interests of Parliament. If the procedures of the other place do not provide adequately for substantive consideration of the Lords view on a rejected statutory instrument then, instead of underpinning the primacy of the elected Chamber, the process will serve the interests of the Executive by granting an override power for MPs without requiring anything of them as regards actively engaging with or making an informed decision about the concerns raised by this House—a danger underlined by my noble friend Lady Thomas of Winchester.
I now serve on the Joint Committee on Statutory Instruments. We meet week by week in the presence of an array of legal luminaries. The work is extremely
important but the contribution that members of the committee can usefully make is severely circumscribed. Our terms of reference limit us to checking whether a statutory instrument is technically sound and properly drafted. We are explicitly precluded from considering its merits or the policy behind it. It is not difficult to see how better arrangements could be made.
Do we not need to see the Strathclyde review, so judiciously conducted by my noble friend, in a wider context? Do we not need a reform process within which it would take a most useful place? For without such a process, the loss of our veto is likely to strengthen the Executive at Parliament’s expense.
7.05 pm
Baroness Taylor of Bolton (Lab): My Lords, the noble Lord, Lord Strathclyde, opened this debate by posing three questions. First, he asked: is there a problem? I think that there is a problem, but not the one that he defined. Secondly, he asked: should we retain our veto? I am inclined to say that we should. Thirdly, he asked: was there scope for change? There is general agreement that there is scope for change, but his report is not a definitive answer.
I go back to the noble Lord’s first question on whether there is a problem. He quoted the events of 26 October in justification for the fact that there is a problem, yet he said today—I wrote down his words carefully—that the two noble Baronesses, my noble friend Lady Hollis and the noble Baroness, Lady Meacher, cleverly found a form of words that did not break the convention. If they did not break the convention, why is the noble Lord quoting that as the case for the changes that he is suggesting? It makes it very puzzling—
Lord Strathclyde: I wonder if it would be worth clarifying that point. I completely stand by the words that the noble Baroness cited but they were in the context of saying that there was now more than one interpretation of what the convention actually was. There was the one propagated by the noble Baronesses while others, including me, regarded those Motions as being in practice fatal. Once you can no longer agree what the convention is then you have to have the kind of debate that we are now having.
Baroness Taylor of Bolton: It was not the words of the Motions that were fatal but the political consequences that the Government were fearing, not least because their Members in another place then woke up to what these regulations were all about. The hype that we saw, which my noble friend Lady Smithmentioned, about the threats of extra Peers and the suspension of this House was more to do with the political consequences than the actual point about a convention being broken.
For several years, I was part of the business management team in the House of Commons. I was leader of the Commons and its Chief Whip; before that, I was the shadow leader of the House when Tony Newton was the leader of that House. One of the main problems that government business managers had—looking at what the noble Lord, Lord Jopling, said earlier, I think that it is the case on all sides—was in trying to keep Ministers realistic about what they
could achieve in their legislation. They always wanted to do more and to have wide framework legislation. They always wanted to load the legislation so that a lot could be done by statutory instruments. There were mechanisms for dealing with that, but it was very difficult to contain Ministers at times.
We have to acknowledge that the whole process of using statutory instruments, while absolutely vital to the machinery of government, is or can be open to abuse. The noble and learned Lord, Lord Judge, said that that is possibly the case with all Governments. I accept that there have been occasions when all Governments have pushed the limits further and further, but we are now in a new ball-game with the framework legislation that we get and in terms of the SIs. The example that the noble and learned Lord gave about the provisions in the Childcare Bill during the previous Session prove the point. The idea that you can make a criminal conviction through an SI is just outrageous and we should not even be contemplating it.
I think that we have a great deal of agreement this afternoon that we need change, but it is not a question of what changes need to affect this House. It is a question of what changes need to be implemented in Parliament as a whole to deal with the whole question of secondary legislation and how we scrutinise and hold the Government to account.
My noble friend Lady Smith reminded us of the difficulty in the House of Commons of getting Back-Benchers to serve on SI committees. It was and is a real problem, because people saw little mileage in it for themselves and very little point, because it is a very limited debate. Often, the problem was getting a quorum rather than being challenged on the issues thrown up. At the moment, we see minimal scrutiny in the House of Commons by government Back-Benchers who are told to keep quiet and opposition Back-Benchers who do not think that they will make any difference.
We have three problems here: framework Bills, the number of SIs—and, probably more importantly, their scope, which is much greater than it used to be—and the problem of lack of scrutiny in the House of Commons. When we are considering what the next stage be, it should not be a simplistic Bill, as the noble Lord, Lord Strathclyde, has suggested; it should be a comprehensive look at this problem. We have had some interesting suggestions during this debate of a Joint Committee, with the noble Baroness, Lady Fookes, making some very pertinent points and the noble Lord, Lord Higgins, talking about implications of financial privilege for SIs. I would say that most SIs have a financial implication. Are we to have a threshold or to say that we can never look at any of them?
There is general agreement on all sides of this House that this is a bigger problem than one of a convention that may or may not have been broken. Therefore, I urge the Government and the Leader of the House to think about not only what is convenient for this Government in the short-term but—I know that it is unlikely in the near future—what they may have to and want to do in opposition. Do not think about the short term, because that will not be good
for Parliament as a whole. We have a big responsibility in this House to Parliament as a whole. That is the way that we should go forward in considering this issue.
7.12 pm
Lord Maclennan of Rogart (LD): My Lords, following the thoughts of the noble Baroness, Lady Taylor, I would say that the House of Commons is not undertaking sufficient scrutiny of the Government. That is a change. I spent 35 years in another place. Subsequently, committees were set up to scrutinise the work of different departments, but the legislative scrutiny is defective. It seems to me that this House has a duty to fill that gap, but not without discussing it with the other place.
Professor Meg Russell, in her book on this House published a few years ago, pointed out that 40% of the amendments carried against the Government in this place were ultimately accepted by them. That is indicative of the role of this House. The convention that we rarely look at subordinate legislation or statutory instruments needs to be examined. It ought to be examined with another place. We should be coming together on how to change these matters.
The imbroglio about the tax credits was very well handled at the time by the leaders of that debate. It was a ghastly proposition, with hardship being suffered by the least well- off members of society. It was certainly necessary to ask the Government to consider again what they were proposing. Indeed, that could be said to have been successful, because the Government largely withdrew their proposals.
I would prefer option 3 of the suggestions of the noble Lord, Lord Strathclyde, but it should not be implemented without dialogue with another place. There is one lacuna in the proposal, which is that there is no indication of the time that it might take to allow the Government to reconsider their proposal. I hope that, when winding up the debate, the noble Lord will give some us thought about that. If it was fed back immediately after this House had exercised its exceptional right, it would not be as effective as report of the Joint Committee on Conventions in 2006 wanted. In the report, which was cited earlier, the Joint Committee took the view that,
“the House of Lords should not regularly reject Statutory Instruments, but … in exceptional circumstances it may be appropriate for it to do so ... The Government appear to consider that any defeat of an SI by the Lords is a breach of convention. We disagree”.
That disagreement was very helpful. We have seen five or six statutory instruments thrown out in the past 65 years. I hope that that will be taken into account in considering whether it is necessary to have regulation, a parliamentary Act. It seems to me worthy of consideration whether the convention should be prolonged. I do not necessarily advocate the third proposal without modification.
This debate is very worth while and needs to be taken outside this Chamber, because we all accept the primacy of the other place, yet we all accept that the function of the two Chambers is to oversee and scrutinise with great care what is being done or proposed by the Government.
7.20 pm
The Earl of Kinnoull (CB): My Lords, I begin by joining in congratulating the noble Baroness, Lady Bowles, and the noble Lord, Lord Darling, on their engaging maiden speeches. As a Perthshire resident I also echo the thanks of the noble and learned Lord, Lord Hope, to the noble Lord, Lord Darling. I do not thank that he has ever really been thanked enough for his efforts. In very trying circumstances he was immensely dignified and effective. We should also thank the noble Lord, Lord Strathclyde, for his review. It is much more difficult to write a short letter than a long one. The review is short, well written and readable. Really, it contains everything that one might want to have on the topic.
I will confine myself to three areas or themes that came out of the review. The first is that of clarity. I notice that the word appears on the first page and the last, and it appeared in the speech of noble Lord, Lord Strathclyde, earlier on. As a relatively new Member of the House, I found it interesting to be asking on 26 October quite a lot of more experienced Members of the House about the conventional position. There was a total lack of clarity among the membership of the House, particularly among the more junior Members, as to what the position was. So I thought that I would do a bit of research on this, because, as a newish Member, I had recently been handed all the relevant bits and pieces of paper—and that was difficult.
My first suggestion, on which it will be very interesting to hear a comment, is that there could be in some place some recording of what the conventions might be. I say very carefully here that I have read the relevant parts of the Joint Committee on Conventions report of 2006 and I agree that it is fresh—a word used by the noble Lord, Lord Strathclyde. I agree with it all. I am not suggesting that anything should be codified in any way. I am merely suggesting recording it, so that there is at least somewhere to which people like me can go in order to form a view on what the conventions are.
My second point is about skeleton Bills. In my mind these have been rebranded by the noble Lord, Lord Cormack, as Christmas tree Bills. That is a better way of thinking about them. I will read out again the relevant bit that appears twice in the review, about the Government taking,
“steps to ensure that Bills contain an appropriate level of detail and that too much is not left for implementation by statutory instrument”.
As a quid pro quo that is good news if the third option is taken. However, it deals with future Bills and not with the problem of Christmas tree Bills already on the statute book. In six minutes it is not possible to develop that, but it occurs to me, considering this point further, that one has to deal with old Christmas tree Bills and old provisions for statutory instruments as well.
I will make some more general points, and my next comment is on timing. As has often been observed today, there was another choice for those tabling legislation for the Government as to the route that they took. There was a certain route and even if that was a bit clunky, the Government have the ability to conduct their business. As we grapple with the issues that have
been raised in this debate, I do not therefore feel that this House or the other place should be in any rush; it is important to get it right.
Building on that, of course the functions, powers and composition of this House are interrelated. If you are going to tinker with those functions and powers, then, as the noble Lord, Lord Norton, said, there are quite a few difficulties that, as you scratch the surface, you come across. A number of people have suggested that a Joint Committee of the two Houses would be appropriate, and I would support that. But anyway, the document is pithy and would be very valuable were such a Joint Committee to be formed in the future. However, I do not feel that the document is a good basis today for piecemeal constitutional meddling.
7.25 pm
Lord Skelmersdale (Con): My Lords, at this point in the debate I wish to put a rather different slant on it, even though I know that what I am about to say will not endear me to many of my noble friends. I believe that there is a four-letter word that best describes the debate’s background. That word is “myth”. In fact, it is worse than that. It is myth based on myth.
Why do I say that? On his own admission, the Prime Minister asked my noble friend Lord Strathclyde to look at the relationship between the two Houses in relation to statutory instruments, having been frightened that there were two Motions on successive days to defeat SIs on tax credits and electoral registration. The indisputable fact is that these Motions were indeed laid. Both were defeated by reasonable majorities, in accordance with the conventions—pace my noble friend beside me. The noble Baroness, Lady Smith of Basildon, was spot on when she said on 17 December:
“Let us be clear that in this Parliament three attempts at a so-called fatal Motion to reject an SI have failed”.—[Official Report, 17/12/2015; col. 2191.]
I take it from that statement that the Opposition, while complaining loudly, did the decent thing in not supporting such Motions, according to the convention—which unfortunately only some of us understand. How can you have a convention when Members of the House either do not agree with it or do not understand it? The net result of the Motions was that, as we all know, the Government’s policy, announced in the Autumn Statement, came to a grinding, if temporary, halt.
This brings me to another myth. In the debate on the Motion, several noble Lords expected the order to be covered, as we have heard today, by financial privilege. The trouble is that this option is never available for statutory instruments. They further thought that the affirmative Motion should have been included in a finance Bill, or a Bill specifically for the purpose, which would have been certified as coming under yet another convention: financial privilege—again, not regularly understood by all Members of the House, and sometimes by the Front Benches when they want to confuse the issue.
Both would have taken several weeks to get on to the statute book, which would have taken too long for the Chancellor’s plans. In fact, as I understand it, tax credits can be amended only through the Tax Credit Act 2004, which stipulates the use of affirmative statutory
instruments to change them. I do not know whether the Government of the day knew that they were creating an elephant trap by so stipulating, but, as events transpired, they most certainly did. After all, several SIs under that Act were agreed by both Houses during the coalition Government, so this Government very naturally thought: why not this one? It was laid and, importantly, accepted by another place—but not, obviously, here. It is worth repeating that your Lordships did not throw it out—to which, of course, there is no recourse.
I hope that I have not taken too long to explain why I think that my noble friend Lord Strathclyde was asked to solve a problem that did not exist. None the less, being him, he stuck to his brief that the existing conventions might soon break down. He has come up with a positively brilliant solution that can reasonably be worked upon. I would look at it perhaps as the basement of a future building. There is much to be thought about, as evidenced by the Hansard Society’s brief and Professor Russell’s comments from the Constitution Unit—not least, how do we cope when your Lordships consider a statutory instrument before another place? Will another place—this has already been mentioned in this debate—be able to use a deferred Division? Both these things need a lot of thought. Another vote in another place will settle the matter once and for all, without a further vote in this House.
The real damage on 26 October was that although everyone agreed that tax credits are a financial matter, the relevant SI cannot be given a Speaker’s certificate of financial privilege. I therefore ask my noble friends whether the Speaker should have this power and whether it should now be added to my noble friend’s preferred solution number 3.
7.30 pm
Lord Foulkes of Cumnock (Lab): My Lords, like the noble Lord, Lord Skelmersdale, I shall take a slightly different tack, but first I say that I have great respect— indeed, affection—for the noble Lord, Lord Strathclyde, although he organised the Conservative campaign against me election after election in Carrick, Cumnock and Doon Valley. Mind you, my majority went up each time, so maybe I should thank him.
We have to remember that this report was not requested by this House or Parliament, but was instructed, as it were, by the Government in a fit of pique, and we have to take account of that. The heading of this debate is “Secondary Legislation and the Primacy of the House of Commons”, but, as others have said, it is not really about that at all. This is really about Parliament’s scrutiny of the Executive. That is coming up again and again in this debate.
We could ask why we need a second Chamber. After all, not all countries’ parliaments have a second Chamber. Mind you, as my noble friend Lord Darling said in his excellent maiden speech, in Scotland, we are seeing the effect of having a one-Chamber Parliament with one party in control, and that raises some concerns.
There are other arguments. For more than 50 years, I have supported first past the post for the House of Commons. It was right and defensible, not just because
of the link with Members, as I found in my constituency, but because when nearly 80% of the electorate voted—as happened in my constituency, certainly in 1979—about 80% of the people who voted did so for one or other of the two main parties. Now we have a multiparty system, and a lot of people—even me—are beginning to question whether a party with less than one-quarter of the electorate supporting it really has a mandate and can say that this House must accept what the other place is doing because of that mandate. We must remember that the legislation is put forward by the Government in that place.
Meanwhile, we particularly need an effective revising Chamber. I am in favour of major reform, of a senate of the nations and regions replacing this unelected Chamber with a more responsible and accountable Chamber. Meanwhile, we need to look at how we can improve the existing system. The current proposals are entirely the wrong way of doing it, as a number of people have said. Look at yesterday’s House of Commons Hansard and see whether anyone here can understand what was happening. There was absolute chaos in the House of Commons. The noble Lord, Lord Lisvane, predicted exactly what would happen. It was total chaos as the Speaker ruled that the Bill could be voted on only by English Members. The Deputy Speaker took a vote by acclamation. I think she had to work out whether only English accents were saying “Aye” or “No” to decide whether the legislation passed. What happened was absolutely ridiculous.
We have had too many of these quick political fixes, as my noble friend Lord Darling said. We need a comprehensive review. The Labour group in this Chamber produced an excellent report. My noble friend Lady Taylor was one of the joint chairs. It did not just deal with how SIs are dealt with in this House but looked at the whole question of the structure, composition and role of the House. With respect to the current Leader of the House, she has paid scant attention to that report. A lot of work was put into it by a lot of people over a long period, looking at all aspects of the House. Frankly, unless we look at the House in that comprehensive way rather than go on with this piecemeal reform, we will get into more difficulties.
This has been an excellent debate. I have sat through most of it and found it really fantastic. I enjoyed Monday’s debate on the Trade Union Bill, but this debate has been even better. A tremendous range of suggestions has been put forward by noble Lords including the noble Lord, Lord Norton, and my noble friend Lady Hollis. The Leader of the House needs to treat this debate really seriously. I do not think anyone here would expect her to deal with the individual suggestions and proposals—there have been so many really good proposals—immediately in her reply, but we need to get from her an assurance that the Government will look at each and every one of the proposals, alternatives, additions and suggestions that have been put forward. With no disrespect to my noble friend Lord Strathclyde—he is my personal friend—I do not think his is the only way forward. There are many other ways forward. I hope the Leader of the House will look at this in a comprehensive, coherent and holistic—I think it was the noble Lord, Lord Norton, who used that term—way. I hope that will be the
guiding principle as we look forward so that we do not continue with piecemeal reform, which is causing so much disrespect and so many problems within not just this Chamber but in the other Chamber, and does not enhance the reputation of this Parliament.
7.37 pm
Lord Bowness (Con): My Lords, I have not generally participated in debates of this kind, leaving them to noble Lords with greater constitutional and parliamentary expertise. However, this month it will be 20 years since I was introduced. As a member of the Secondary Legislation Scrutiny Committee chaired by my noble friend Lord Trefgarne—of course, I speak personally— I feel able, on this occasion, to offer an opinion.
I start from the position, as I think most of us do, of believing in the primacy of the House of Commons and that your Lordships’ House is complementary to the House of Commons. Over many decades, an ethos was established in this House, largely by the hereditary Peers, which was followed by the life Peers and ensured that the Government should ultimately get their business through and that the conventions should be observed, but that, for good or ill, under the present system this House had certain rights, which were rights of Parliament as a whole, not just of this House. That way of working encourages compromise, courtesy and a less partisan approach than exists elsewhere in Parliament.
That spirit survived the exclusion of the majority of hereditary Peers, but I perceive a change which began under the coalition and continues in this Parliament. It is on the part of the Government. I do not know whether the change was brought about by the dynamics of coalition or the political arithmetic that now exists. The change on the part of the Government that I perceive, rightly or wrongly, may be subtle, but it involves not just the acceptance of the traditional role of the Government getting their business, subject to the proper exercise of our rights, but a change which is turning towards seeing this House as an instrument of securing government policy, rather than as an instrument of the rights of Parliament. The rejection of the tax credit instrument, which was seen by the Government as a breach of convention—my noble friend has confused me: was it or was it not?—has led to my noble friend Lord Strathclyde’s report. To rush into legislation to change the current position would be a mistake. Hard cases make bad law.
I respectfully suggest that this measure was badly handled at both ends of the Palace. Whatever the original legislation said about changes to be made by statutory instrument, it could have been foreseen that, given the numbers on the Floor of this House and the concern both inside and outside Parliament, trouble was likely. Despite what has been said by my noble friend Lord Skelmersdale, the Government could have found a different way of dealing with it. Equally, this House—and we could have endless discussions about whether or not the amendment was fatal or in breach of convention—was not well advised to take its powers to the limit, and perhaps to breaking point.
Although we are grateful to my noble friend Lord Strathclyde for his report, I wish that this had been dealt with through parliamentary channels, not by a
hasty decision of the Executive to seek a solution. We are where we are, however, and my noble friend’s report recommends option 3, a power to delay, which, if introduced properly, could improve the scrutiny of statutory instruments by Parliament as a whole. My membership of the Merits of Statutory Instruments Committee has opened my eyes to the scale, complexity and range of secondary legislation. That scrutiny is certainly needed, and I support the suggestion made in option 3.
I have not been a Member of the other place, but the scrutiny there of statutory instruments appears not to be intense. In the case of tax credits, without the benefit of the impact assessment requested by my noble friend Lord Trefgarne on behalf of the committee, it was voted on. The article referred to by the noble and learned Lord, Lord Wallace of Tankerness, by Mr Matthew Parris, a former Conservative Member of Parliament, described statutory instruments as,
“the fat, hidden underbelly of our lawmaking. Peers are good at small print, but the Commons should worry about the mountains of SIs it waves through”.
If the power to delay were to be the abandonment of our veto, then before that is agreed some conditions should be applied and some questions answered. Is the veto removal limited merely to financial statutory instruments? If so, how will financial instruments be defined? Is the right of veto to be retained over non-financial instruments? How many of them are without financial impact? I believe that a power of delay has to be for a set period to ensure that the House of Commons has and allots time to debate and consider our reasons for rejection, and to return the instrument with amendments or with reasons for maintaining its position. This is power for Parliament, not for your Lordships’ House. My noble friend Lord Strathclyde argues against a set period for delay on the grounds that there may be urgency, but that should be an exception, not the rule.
I am not a noble and learned Lord. Reference has already been made to the Fixed-term Parliaments Act by the noble Lord, Lord Kakkar, which repealed a provision in the Parliament Act and replaced it with a power for a statutory instrument put forward by the Prime Minister to extend Parliament for a maximum of two months. As he said, that is a principle that needs looking at. Our House is also bound into the process. The Statutory Instruments Act itself, as amended, deals with what must occur if an instrument is to come into force before being printed and laid before Parliament, and involves notification being sent not just to Mr Speaker but to the Lord Speaker together with an explanation. These are all matters that need consideration and discussion.
I am glad that my noble friend chose not to respond to representations about composition, nor to comment on ideas to reduce the overall numbers to reflect the votes cast in a general election, which is a recipe for a change that would lead to a further weakening of the independence of this House and its Members and create a Chamber much more in tune with whatever party formed the Government and, hence, a stronger Executive. The present situation regarding numbers in this House is not the fault of the House or any of our colleagues in any part of the House, and needs not legislation but the spirit on the part of all the parties
here that led to the Salisbury, Addison, Carrington, Shackleton and, indeed, the then Viscount Cranborne and the noble and learned Lord, Lord Irvine, agreements at various times in this House.
Lastly, if there is to be legislation, I ask my noble friend the Leader of the House to confirm that it would be a House of Lords Bill, not one subject to the Parliament Act.
7.44 pm
Lord Desai (Lab): My Lords, we know that the noble Lord, Lord Strathclyde, is a very nice man. I have known him for all the 25 years that I have been here, and he has shown great courtesy, charm and ability. So the question before us is: why does the Prime Minister not like him? Why has he given him what in rugby terms is called a hospital pass? He has been given the thankless task of trying to make a major tactical mistake by the Government, which was shown by your Lordships’ House to be worth definite rejection, seem respectable, retrieving the disaster that was visited upon the Government by pretending that the fault was somehow that of your Lordships’ House.
We have had an interesting and wide-ranging discussion today. We have had a kind of admission by the noble Lord that, strictly speaking, conventions were not broken on 26 October by the two Motions that were put to the vote. In the debate on the day, the noble Baroness, Lady Meacher, said she was introducing her Motion because she knew that within three days the House of Commons would be holding a discussion on precisely the tax credit issue, so she was genuinely asking the House of Commons to think again. We all thought what would happen, after we had debated and passed the Motion, was that the House of Commons would think again. Indeed it did, and the Chancellor thought again too. As the noble Lord, Lord Cormack, said, it is the most popular thing that the House of Lords has done as far as the British public were concerned, and the most effective thing, in that the Chancellor dropped the policy. He had to revise his policy, come the Autumn Statement.
Given that all these things have happened, why do we have to consider all sorts of questions about the position of this House vis-à-vis the House of Commons, matters of power and privilege and all that? Why can we not just admit that, strictly speaking, had the Government wanted drastically to cut tax credits—they have the privilege to do so if they want to—they should have done it via primary legislation? That would have been the end of the matter and we would not have been able to do anything about it. So why did the Government do it by statutory instrument? It is precisely because there are 1,000 of them every year. I was privileged to be on the first committee of your Lordships’ House on the scrutiny of secondary legislation and, let me tell you, they are mind-numbingly boring. However, you have to go through the details because those details matter; they have to be examined. I think someone in the other place thought, “Statutory instruments are so boring that no one’s going to take this one seriously and it will pass”. It is precisely because secondary legislation is overused that a trick was tried on us that failed.
I remember Lord Simon of Glaisdale, whose name was mentioned earlier, who used to warn us about Henry VIII legislation and so on. There is indeed a problem; if we are going to have 1,000 or 1,200 pieces of secondary legislation, someone has to scrutinise them. I also agree with the many noble Lords who have said that your Lordships’ House would scrutinise them with much greater care and attention than would the other place. However, given that, we also ought to ask whether a lot of those sorts of decisions should not be much more open and transparent and be part of primary legislation, and not in skeleton Bills? Therefore, those are the issues.
I want to make one slightly radical suggestion about financial privileges. I accept that since the 17th century or before that it has been the House of Commons’ privilege to have powers with regard to financial matters. In 1911 the House of Lords blotted its copybook and got smashed for that reason—quite rightly so—and in 1949 our powers were again curtailed. Coming to today, the relationship between our two Chambers is quite different, because your Lordships’ House is no longer a seat of privilege or a place of feudal Lords. It is a place as representative of the great British public as is the House of Commons. Yes, we are unelected, but we are not unrepresentative. Also, as was proved on 26 October, we sometimes have better judgment on financial matters than another place.
Therefore, when we examine all the big questions of our constitution, we ought to ask ourselves: is it not time that we used the expertise of this House and its representativeness to have a greater input into financial matters than it is allowed today? It will not happen any time soon—if we ever have this great constitutional convention we may be able to consider that—but we should certainly not leave that question undiscussed in our future deliberations.
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Lord Greaves (LD): My Lords, at this stage of the debate I do not want to do what so many noble Lords so far have done. I have listened with great admiration and have been bowled over by so many cameo presentations from noble Lords that summed up the position from their point of view based on so much distinction, experience and wisdom. I was particularly fascinated by the speech by the noble Lord, Lord Norton of Louth, and his explanation of the difference between conventions and usages. I shall dine out on that for quite a long time.
The noble Lord, Lord Empey, asked, “Is there a crisis?” and said that there was not. I agree with him. The noble Lord, Lord Foulkes of Cumnock, pointed out that a fit of pique by the Prime Minister and an outbreak of anger at the top of the Government does not amount to a constitutional crisis. However, this whole process, if it is handled well, could lead to better procedures in Parliament as a whole. I will therefore just chuck one or two little pebbles into the pond.
First, in the foreword of the report—that shows that at least I read the first page, if nothing else—the noble Lord, Lord Strathclyde, calls for “more certainty and clarity” to be brought to the process of bringing statutory instruments and their passage through
Parliament. I thought about this. Yes, we want clarity of process and procedures and quality of scrutiny, which is very important. On certainty, clearly we do not want chaos, where everything is being thrown to the winds all the time, but absolute certainty makes a mockery of proper scrutiny. The Government ought not to be in a position where they are 100% certain to get their statutory instrument through every time, otherwise the ability to make changes when things go wrong is taken away.
My second point leads on from that. This House has very good procedures for dealing with statutory instruments, particularly the Secondary Legislation Scrutiny Committee and others, which, as many noble Lords have pointed out, do better than the House of Commons. However, that all depends on the willingness of the Government to take seriously the concerns and representations that are made. A veto used five times in 60 years is hardly a threat to any Government or to the constitution, but it is important as a backstop. There is a lot of anecdotal evidence one can cite of civil servants writing statutory instruments and Ministers putting them forward, having to think hard and to rewrite drafts and so on because they know that that power is ultimately there and that scrutiny will take place to find out if the legislation is necessary. If that veto goes, there could be far more objections by noble Lords, as has been suggested by various Members in the debate. It will be easier to reject because it will not be fatal, and that could diminish the process; the process that we have could have less effect than it does at the moment. The noble Baroness, Lady Andrews, said that it could lead to greater abuse, and I agree with her. That is one of the unintended consequences.
My third pebble is that we must be very careful to ensure that this process does not lead to unintended consequences. One could be that when we are discussing primary legislation, there is greater pressure to refuse to accept a ministerial power to make orders and regulations in the Bill because the process of scrutinising those when they are made may be less useful, which could cause more unnecessary and irrelevant debate at the Bill-making stage. The Government ought to be careful about what they wish for.
The noble Lord, Lord Strathclyde, also said that his third proposal gives us what we do not have now—an ability for a conversation between the two Houses. It does not; all it provides is the ability for this House to reject and for the House of Commons perhaps to reject the rejection within days—certainly it would not come back and there would not be ping-pong. However, if we look at ping-pong on Bills, very little conversation takes place between the Houses. Conversation takes place informally, outside the formal structures, among politicians within the Government and between the parties, but there is very little conversation between the Houses. I suggest that the exchange of brief, inadequate messages is not a conversation. If we need conversation between the Houses, let us think hard about that issue and think of ways to set up some kind of mediation committee or negotiating system between the Houses to do a much better job than coming here occasionally in our pyjamas at 4 o’clock in the morning and traipsing through the Division Lobbies on the fifth ping-pong on some Bill.
The noble Baroness, Lady Smith of Basildon, in a superb introductory speech from her side, pointed out that at the moment statutory instruments are in a direct relationship between the Government—in the form of their Ministers—and each House of Parliament. That is the formal system; I accept that political discussions also take place informally. However, if we want to introduce a new formal system in which there is a relationship between the two Houses on statutory instruments as there is on Bills, we need to think of better ways of doing it than ping-pong, as I have just said. That at least is a constitutional issue that needs thinking about carefully and not just rushing through because the Prime Minister was piqued.
My final pebble is this: everybody thinks that House of Lords procedures have been here for 700 or 300 years, or whatever it is, and that they are historic and traditional, but of course it is completely untrue. They evolve all the time in a sensible, pragmatic way so that this self-regulating House can do what it wants to do. Therefore, let us not do anything which stops us doing what we might want to do on some occasion in the future. Let us do it in a careful, evolutionary way, and when we do that, three weeks later everybody will think that it has been here since 1215, probably.
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Lord Cromwell (CB): I join those thanking the noble Lord, Lord Strathclyde, for his very thoughtful and thought-provoking review, not least because of the quality of the debate that it has provoked here today, which has brought forth two such excellent and educational maiden speeches. I was a little more nervous to hear about the dreams that the noble and learned Lord, Lord Judge, has of beheading Cromwells, even if they are not my kinsmen, but I hope he sleeps rather better tonight after the very powerful speech he gave us earlier on.
When I first read the review, I found a great deal to like in it. Option 1 is, I suspect, a straw man, while option 2 is almost the status quo. Option 3, to which we are therefore ineluctably led, has an appeal. All the options in the report are designed with one purpose, which is to reduce the ability of this House to thwart the will of the other place. That is, of course, as it should be. Noble Lords may cite examples of where that thwarting has saved the Commons from itself, and we may even have reflected the popular mood on an issue better than the other place on occasion, but that is not our job. The role of this revising Chamber, which it does brilliantly, is, first, to assist the other place in avoiding the unintended consequences of the Government’s legislative programme and, secondly, to provoke thought rather than confrontation. This is achieved through a combination of the wealth of experience in our House and our role in painstaking examination of proposed legislation. However, in the end, the elected Chamber must have its way. That includes the right to pursue policies and legislation that are unpopular, including with some Members of this House, and taking the electoral consequences.
The second thing that appealed to me about option 3 was that it stresses the need for clarity and simplicity. We have talked very inwardly tonight, but out there beyond the Westminster village there is a great need
for that clarity of understanding. Many citizens—lamentably few of whom know what this House does or contributes—need a clear understanding of the valuable role of this House, the areas where it excels and where its authority starts and finishes. Option 3 goes a long way to making clear and giving practical effect to the primacy of the House of Commons in interaction between the two Houses. I believe that is what the people of this country would expect.
However, there are difficulties, as ever, in the details of the report, particularly with option 3. First, as a number of noble Lords have said—notably the noble Lord, Lord Empey, and the noble and learned Lord, Lord Hope of Craighead—what is to prevent the House of Lords overusing the ability conveyed in option 3? There is a real risk of option 3 enabling political skirmishing between the Houses. That would be regrettable and I hope that the closing speeches we will hear tonight will tell us how that will be avoided. Conversely, on the other side of that coin, what is to prevent the Commons—a number of speakers have touched on this—simply adding a tick-box process to dismiss the communications from this House and paying little heed to their content? This is a real concern, widely mentioned this evening. A number of commentators have raised worries about the quality of scrutiny in the Commons anyway: both before statutory instruments even come to us and how they would be scrutinised and debated in the Commons if this House sent them back. The review suggests that a requirement for a Written Ministerial Statement might be used, but is that really going to be enough? Again, I hope that we shall get more clarity on this in the closing part of the debate.
The review ends with two further recommendations. The first is a review of when Commons-only procedures should apply. That makes sense if it avoids the abuse of the system to smuggle through aspects of policy and legislation that deserve proper debate and scrutiny. It would be helpful to know if or when this review has actually been scheduled. Secondly, there is not so much a recommendation as an appeal to the Commons to provide Bills and instruments that are more fully written—or, to use the language of tonight, less skeletal. This is something which has often been expressed in this House and is devoutly to be wished for. However, we may wonder whether it is more of a hope than an expectation. Were any signs of progress in this area detected during the course of the review?
Finally, I see the merits of option 3 as a one-off updating of the conventions of this House. But—and again it is a substantial but—it is of course risky to adjust, as this review does, one part of the machine in isolation from other, wider changes in this House and, crucially, in the other place. But that is probably a debate for another day, or perhaps even a Joint Committee.
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Lord Elton (Con): My Lords, a few moments ago, the noble Lord, Lord Greaves, suggested that anything we did now would be thought by everybody outside this Chamber to have been going since 1215. One of the things I find quite incredible about this country, and particularly the political class in it, is the ignorance
about what did happen in 1215, which was the creation of a desperately needed organisation to control the Executive—not one to facilitate them. The Executive were not permitted to enter it until the reign of George I, who did not speak enough English to deliver the King’s Speech and had to have a Prime Minister in here to do it for him. Now we have more than 100 of his kin, as it were, in the two Houses.
That makes it increasingly important that we guard the power not just of this House but of Parliament to control the Executive. On occasion, the Government—the Executive—get control of the other place to the extent that it loses its ability to control the Government. I refer to the occasion when the Labour Party wanted to introduce 90-day detention without habeas corpus or any access to lawyers. That was only stopped because this House sat from 2.30 pm on a Thursday until 7.31 pm on a Friday evening. Your Lordships may think this is a long session, but it is nothing to what we did then. That actually stopped it. That was such a close demonstration of how difficult it is when we are really needed to restrain the excesses of an Executive that I, for one, am certainly not tempted by options 1 or 2. Option 3 is defective in two respects, to which I will return.
The other thing that amazes me about people in Parliament since 1973, when I joined it, is that I see endless processions of Oppositions clamouring for more restraint of government and coming on to the Front Bench, both here and in the other House, promising to do something about it. Within months—my noble friend Lord Higgins made this point rather well—they are saying it is not convenient or timely and actually find they like things as they are and that it makes business easier. The departments tell them that they should not build obstructions to the policies the department wants to put in, and the result is that nothing much happens in the right direction after the first six months or so in power. Incidentally, it was in her first six months that Lord St John of Fawsley got Margaret Thatcher to accept departmental Select Committees in the House of Commons, which has been tremendously important but is something she would never have done in the following years.
I come from the wrong camp: I am a Conservative, but a parliamentarian, and my view is that we should hang on to all the powers we have. The fat underbelly of legislation, as it was described a moment ago, exists in the huge amounts of legislation that go through in statutory instruments. How do we ever stop the excessive powers put into statutory instruments? If the Henry VIII clause has gone through, if the Minister has the power and if the department wants the legislation, how do we stop excessive powers and excessive expenditure—things that should not happen without proper and full parliamentary scrutiny—if we cannot say no? We can send them back for the House of Commons to think again, but if the Commons just nods them through, the same faults will be repeated.
There is much in option 3 that is desirable. I think it is necessary to have a specific time limit within which the House of Commons should make up its mind. There should be machinery to see that legislation is actually debated. My noble friend said that you could not do that because debate might go on—or there
might be no debate—before the statutory instrument fell due to be implemented. The answer to that is to have a timetable for the tabling of statutory instruments by departments such that there is time for them to be scrutinised and discussed by both Houses in an interchange before the implementation date. Departments are sometimes pretty slack in getting these things out. What is now needed is a review of the whole SI process from drafting through to the instrument’s scope and the powers it confers, followed by the tabling and the procedures in Parliament. If those matters can be matched into a discussion of the wider question of the arrangements between the two Houses, all well and good. However, we need to get on with something.
If the commissioning of this report was a reaction to what was thought to be an unpopular exhibition, with the House of Lords being out of date and unpopular with the country, my response is that I think that in the country as a whole it was thought that we did rather a good job. If we want to do something to show that we, the House of Lords, wish to make ourselves more effective, easier to run and less expensive, we should address the question of the numbers in this House. I have a Private Member’s Bill on the stocks and am working on a Standing Order which, between them, would achieve that reduction without changing the balance between the parties.
I hope that your Lordships hang on to your powers for as long as you can.
8.12 pm
Lord Haughey (Lab): My Lords, I begin by congratulating my noble friend Lord Darling on a first-class maiden speech. I am sure he will be a fine addition to this noble House. I also congratulate the noble Baroness, Lady Bowles, on a wonderful maiden speech.
Much has been said today about the rights and wrongs of the vote taken in this House on 26 October last year and I have no intention of repeating what your Lordships have already heard. I would like to dwell on what happened because of that vote and may take a different slant, as my noble friend Lord Foulkes did in his speech. My speech will, I hope, be short and to the point. I should have mentioned earlier that I was giving the noble Baroness, Lady Hollis, three minutes of my allotted time.
At the end of October last year, this House was asked to scrutinise the tax credit regulations. After much debate it became apparent that there were various degrees of opposition from all sides of the House. The subsequent vote demonstrated that the majority of this House felt that the regulations should not be passed.
The uproar from the Government that followed that decision was absolutely astonishing. The knee-jerk reaction created headlines once again calling into question the legitimacy of this House. This led to the Prime Minister instructing the noble Lord, Lord Strathclyde, to carry out a review of the House of Lords. There followed media reports outlining how the decision was unprecedented and broke with convention. Some even suggested that this House had overstepped the mark. None of that is true. What we did in the tax credit
regulations vote was exactly what this House was set up to do. The combined wisdom of this House prevented truly unjust financial misery being heaped upon nearly 2 million people. The banner headlines were all about opposition victory and government defeat. There was no victory and no defeat. After serious debate, common sense prevailed. We were asking the Government to think again.
Over the next few weeks, as the dust settled, the Government began to realise the ramifications of the regulations—that they were maybe a step too far. The Chancellor had the opportunity to lighten their burden. Even some Tory MPs on the Back Benches welcomed the opportunity to revisit them. The Chancellor, to most people’s delightful surprise, took the decision to do a major U-turn. This was met with great cheers from most Members of all parties in the other place, and the Chancellor actually made it look like a victory speech. Some commentators believed that it had greatly enhanced his chances of promotion.
In recent times, never has a decision been made in your Lordships’ House that has so overwhelmingly been proven to be the correct one. Over the past five years, this House has attracted numerous unsavoury and unwanted headlines—unfortunately, most of them warranted. Our legitimacy and very existence has been called into question. We could not have afforded to pay the PR bill for the positive response that this House got after that vote. There is no greater example of the worth of this Chamber and of the reason that it should exist than the outcome of the tax credit regulations vote. Suddenly millions of people throughout the UK realised that we had a major role to play.
The noble Lord, Lord Strathclyde, has now concluded his review and I imagine that most noble Lords will have read it. The noble Lord’s favoured option is option 3. Like most Members of this House, I absolutely welcome a review of the structure of this great institution. However, it is a sad day when a decision made in this Chamber, which is now accepted by all parties to be the correct one, creates a situation where we are now discussing constitutional change. This is absolutely absurd and wrong.
Looking at the structure is one thing; changing the parameters or the remit of this House because of one vote is highly dangerous. If this is allowed to happen, where will it end? I personally believe that if option 3 were adopted it would be a sad day for this House. If this option had been in place when we had the vote in October, 1.8 million people would be suffering horrendous financial hardship, because a measure that is now widely accepted as being wrong could be in place.
I thank the noble Lord, Lord Strathclyde, for all his efforts in the review, but I honestly believe that adopting option 3 would diminish the worth of this House. The review smacks of an instrument that would deliver the Government’s desired outcome, no matter what. This “scope creep” by the other place is not healthy and should be resisted vigorously. As has already been stated by the noble Lord, Lord Cormack, in relation to public response the outcome of the vote on 26 October last year was certainly the most popular that this House has delivered in many decades. People on the outside looking in must be bemused by the fact that
this has resulted in a debate around constitutional change. We must always remember whom we are here to serve.
8.18 pm
Lord Craig of Radley (CB): My Lords, I venture to speak in this debate because, when it comes to tabling and then moving an annulment Motion to an affirmative instrument, I have form. I tabled an annulment Motion to the Transfer of Tribunal Functions Order 2008, an affirmative instrument. One long-standing tribunal, the Armed Forces Pensions Appeal Tribunal (England and Wales), dating back to 1919, was to be scrapped. Its work was to be taken on by a widely drawn social entitlement chamber. The Royal British Legion, COBSEO and senior members of the existing tribunal all told the Government that this did not make sense, well before the order reached your Lordships House.
It was clear that the order had had little consideration in the other place, and it was being taken for granted by the Government that your Lordships would also nod it through. So I tabled my annulment Motion just before the 2008 Summer Recess. I was of course made aware of the convention about such an amendment, but I felt that the issue was of such importance to Armed Forces veterans that I should proceed in the hope that the Government might think again. Indeed, during the Recess, the Government took greater heed of the expert advice that they had received. They decided to set up a separate Armed Forces chamber. The Lord Chancellor, then Jack Straw, and the Senior President of Tribunals signed a joint undertaking that no later attempt would be made to unpick this arrangement unless first approved by Parliament. This was subsequently incorporated into a Written Ministerial Statement on 16 October by the Lord Chancellor, and repeated by the noble Lord, Lord Bach, for this House. When the House came to debate the order on 23 October, I moved my annulment Motion but had already agreed with the Government that, in the light of the changes they had made and the Written Ministerial Statement, a key undertaking, I would not divide the House on my amendment.
In keeping with his terms of reference, the review by the noble Lord, Lord Strathclyde, offers three options for consideration to replace the present arrangements on the debatable ground that the Government have an explicit, invariable right to carry all their proposed legislation—a position where, to quote from the review,
“the veto is left unused”.
None of these three options seems to be a widely favoured runner, being either too extreme or having to rely on achieving a legally binding or codified consensus across both Houses.
My proposal, for what it is worth, based on my experience in 2008, is not to seek to change the current “convention”—it should by now be in quotation marks. The House should not readily surrender its very long-standing power to move a veto in exceptional cases. The historical record of the rarity of annulment defeats, going back to the 1950s, is well known. Since my Motion in 2008, there have been only nine attempts in over seven years to reject, as opposed to regret,
an affirmative SI. In only one were the Government actually defeated before the recent case and the heavyweight, OTT reaction to it. In the same period, more than 1,500 affirmative SIs were passed by this House; a success rate for the Government verging on 99.5% of their business—surely close enough to the “certainty” that the Strathclyde review envisages.
Given such figures, it seems statistically most premature to be doing more than considering a possible way forward—contingency planning, as it were—in the event that the examples relating to tax credits and electoral issues prove to be the harbinger of frequent and successful attempts in this Parliament to thwart government SI business. Although the recent experience was a greater setback for the Government than my case in 2008, the principle of expecting the Government to think again, ahead of a debate, a vote or on an annulment Motion, is sound. It is a fine example of holding the Government to account and gives them the opportunity to reconsider, modify their original intention and seek a better consensus and more widely acceptable outcome. It would be wrong to give the Government a freedom from expert scrutiny, which this House demonstrates, time after time, in the course of its work. Government should welcome that scrutiny and not seek in narrow party interest to weaken, let alone bypass, that input to legislation.
With the benefit of hindsight, I see that it was a mistake for the Government to have relied so much on the supply argument in the tax credit SI. In casting my vote, I supported this, but I did so with a heavy heart because I felt that the arguments so forcefully put for the other side during the debate needed far greater consideration. Indeed, the outcome indicates that the Government have, in part, acknowledged the strength of the counterarguments.
To conclude, I do not favour any of the three options. I would prefer to remain, for the moment, with the current “convention”. It is the least objectionable of the possibilities before us. Indeed, I shall not hold my breath in expectation that any of the options put forward by the noble Lord, Lord Strathclyde, will be adopted. Perhaps if a wider look were to be taken at the complex constitutional issues involved, a better solution than the present one might evolve. Again, however, I do not propose to hold my breath.
8.25 pm
Lord Crickhowell (Con): My Lords, in the course of my remarks I will say something about what was said in this House on 17 December about the proposals made by my noble friend Lord Strathclyde—and, just as important, what was said in the Commons on the same day. My noble friend recommended his third option, but it is clear from what was said in the other place that the first option,
“to remove the House of Lords from statutory instrument procedure altogether”,
remains a powerful runner, despite the fact that, to quote the Hansard Society, it would risk,
“turning a deeply flawed process into a farce”.
The noble Baroness, Lady Smith of Basildon, and indeed my former pair, the noble Lord, Lord Cunningham of Felling, appear to believe that they are engaged
entirely in a battle with the Executive so that Parliament can hold the Executive to account. The reality, as I will show, is that if we are engaged in a battle, it may be as much with Members of the House of Commons as it is with government Ministers.
Several noble Lords have said that this is not the way to effect constitutional change and that there would be no proper scrutiny of what is proposed. The noble Lord, Lord McNally, and the Liberal Democrats have argued that the House of Lords must have the right to say no and that without retaining that right, used sparingly, carefully and rarely, we become a mere debating society. The noble and learned Lord, Lord Wallace, supplemented his hostility to what is proposed with a procedure to allow SIs to be amended.
In the face of such strongly expressed objections to the conclusions of my noble friend Lord Strathclyde, a very powerful contrary view was expressed by the noble Lord, Lord Butler of Brockwell, as was referred to today by the noble and learned Lord, Lord Hope of Craighead. The noble Lord, Lord Butler, spoke in December of the dissatisfaction in all parts of the House with the binary choice that is open to us to either accept or reject statutory instruments. He pointed out that my noble friend Lord Strathclyde’s recommendations were very similar to those recommended by the royal commission chaired by my noble friend Lord Wakeham, who then intervened to confirm that the royal commission had made its recommendations because it wanted a better way for the House to discuss statutory legislation, and to suggest that there was a great deal of support in this House for the proposal.
He reinforced that judgment today, and I share that view. It was significant that, later, the noble Lord, Lord Richard, said:
“There is a good case for this House giving up its veto”.—[Official Report, 17/12/15; col. 2200.]
It is also significant that the noble Baroness, Lady Meacher, said that my noble friend Lord Strathclyde’s third proposal could be a useful way forward.
In arriving at a conclusion, we need to take account of what was said in the other place. I fear that it may not be as helpful a coming together as that advocated by the noble Lord, Lord Maclennan. Those who argued here that this was being pushed through without the opportunity for proper debate, and those who pointed to the shortcomings in Commons procedures for handling statutory instruments, appear to overlook the fact that it is to be dealt with by primary legislation. Mr Bernard Jenkin, who chairs the Public Administration and Constitutional Affairs Committee, said that his committee will wish to look at this, just as the Procedure Committee will. He posed a number of key questions and finished by saying:
“I assure my right honourable Friend that we will be looking at these matters in great detail”.—[Official Report, Commons, 17/12/15; col. 1743.]
I am sure that both Houses will do the same. It may be that that is one of the opportunities that will arise for dealing with the important constitutional point raised by the noble Lord, Lord Kakkar.
We would be incredibly foolish if, in reaching our own conclusion, we ignored the opinions expressed in the other place about this House and its role. Even if
we unwisely discount the unanimous opinion of the four Scottish nationalist Members who spoke on 17 December, who believe that the second Chamber should be abolished as quickly as possible, it would be folly to ignore the strongly expressed views of the seven Conservative Members who also spoke, who I am sure reflect opinions very widely held in the other place. Two of them favoured the first option; only one welcomed option 3. He urged action to deal with some of the things that make this House, as he believes, almost a laughing stock. One referred to the archaic features of our constitutional arrangements; two pressed for an elected House; and one, the new Member for Yeovil, thought we were a completely ridiculous anachronism.
With views of that kind being expressed so forcefully in the Commons and with a great many in this House wanting the sensible compromise suggested by my noble friend Lord Strathclyde, to delay everything for a Joint Committee would be a mistake. There is a need for a Joint Committee for the powerful reasons that have been put to us today. As a former member of the Constitution Committee, which has frequently criticised the manner in which SIs are used and the far too frequent use of Henry VIII clauses—I enjoyed the contribution of the noble and learned Lord, Lord Judge, on that subject—I would also like to see a major independent review of the whole legislative process, as advocated by the Hansard Society. But that would take years, and its implementation even longer.
If I am even half-right about the strength of feeling in the other place, there has to be a compromise now, even if it is only an interim step. We need to get on with things, just as we need urgently to get on with our own reform of the membership and conduct of the House of Lords.
8.31 pm
Lord Williams of Elvel (Lab): My Lords, I follow the noble Lord, Lord Crickhowell, in two senses: first, we must listen to what happens in another place; and, secondly, we must not resile from our duty to be a revising Chamber.
In passing, I endorse the view of the noble and learned Lord, Lord Hope of Craighead, that option 1 will not fly. I also endorse the view of the noble Lord, Lord Norton of Louth, that conventions are not really substantial. I remember sitting on the Opposition Front Bench, as the noble Lord, Lord Strathclyde, will remember, for 10 years in opposition. Every time an SI came up, we consulted: “Shall we try to jump them on this or not?”. The argument generally was no, we should not, because they will do it to us if we come into government. So it is realpolitik; there was no convention in it.
I was most impressed by the noble Lord, Lord Kakkar, and the noble and learned Lord, Lord Judge, because I think that there is a distinction in statutory instruments between those which are the normal run of business and those which seek to amend primary legislation. I shall follow up that argument. Since 2010, 34 Acts have been passed by Parliament with Henry VIII powers. Before us at present there are five Bills with Henry VIII powers. In case your Lordships
are not familiar with Henry VIII powers, I should like to read from Clause 68 of the Scotland Bill, which states:
“The Secretary of State may by regulations make … such consequential provision in connection with any provision of Part 1, 3, 4, 5 or 6, or … such transitional or saving provision in connection with the coming into force of any provision of Part 1, 3, 4, 5 or 6 … Regulations under this section may amend, repeal, revoke or otherwise modify any of the following (whenever passed or made)”—
and so it goes on. In other words, if your Lordships think that you have passed a Bill, you have not—because the Secretary of State can amend it by statutory instrument.
If we are considering the passage of SIs in this House, we ought to distinguish between those SIs, as the noble Lord, Lord Kakkar, pointed out, which try to amend primary legislation and those which do not. If they try to amend primary legislation, I would argue that we in this House should adopt procedures, such as Third Reading procedures, where we could discuss the primary legislation which is to be amended—and, indeed, amend it and send it back to the Commons for consideration. If we resile from that possibility, I am afraid that we are giving up our primary function, which is to revise primary legislation when it comes before us and send it back to the Commons if we do not agree. I would like the Government to consider that when they follow up the report of the noble Lord, Lord Strathclyde.
My second point is whether option 3—which is the only one seriously on the table—should be introduced through primary legislation or Standing Orders. The noble Baroness, Lady Fookes, made a very powerful case when she said that we have got to sort out what would be the result of option 3. I would support primary legislation for option 3 if there is a general agreement between us and the House of Commons about what should be the general thesis of how both Houses approach statutory instruments. I cannot understand any idea that this House’s approach to statutory instruments should be decided unilaterally by the House of Commons. In other words, if there is to be a unilateral decision I would prefer it to be by Standing Orders.
The noble Lord, Lord Strathclyde, quite rightly points out that Standing Orders can be suspended. That is true, but the Companion states quite clearly that for Standing Orders to be suspended, there has to be agreement within the House; in other words, between the usual channels. So any idea that Standing Orders can be suspended in order to try to pass a contentious statutory instrument does not really fly.
With those two caveats, I basically welcome what the noble Lord, Lord Strathclyde, is putting forward in option 3. It is about time we had an idea of how both Houses should deal with statutory instruments generally. We lack a definition of how the House of Commons can establish its financial privilege and how we should obey it in this House, with the primacy of the House of Commons. So I give the proposal half a fair wind—but I hope that the noble Lord, with all his experience, will recognise that half a fair wind coming from me is not bad.
8.37 pm
Lord Clement-Jones (LD): My Lords, we have had some hugely interesting and expert contributions to today’s debate. I am not a constitutional or procedural expert, and no doubt the noble Lord, Lord Crickhowell, will find me boringly predictable in agreeing with my colleagues that we should retain the veto, but essentially I want to draw some conclusions from my experience in March 2007 in persuading the House to reject by three votes an order which proposed the location of the first super-casino in east Manchester. I am glad to say that the angels, in the form of the then most reverend Primate the Archbishop of Canterbury, were on our side for a change, and of course the noble Lord, Lord Strathclyde, referred to that occasion earlier.
I take very little credit for the outcome of that debate because the arguments had been made in advance. Of huge importance was the fact that the Merits of Statutory Instruments Committee, now known as the Secondary Legislation Scrutiny Committee, had in no uncertain terms drawn special attention, first, to the change in the remit of the Casino Advisory Panel from the one originally announced by Ministers, and secondly, to the problems in the way that the panel interpreted and carried out that remit in producing its recommendation to site the super-casino in east Manchester; and that therefore, in the time-honoured phrase, the SI might “imperfectly achieve its objective”. I probably do not need to remind many noble Lords that the committee was chaired by the noble Lord, Lord Filkin, who at the time sat on the same Benches as the then Government.
During that debate, we had some procedural discussion as to whether it was proper to vote down a statutory instrument of that nature. I pointed out Lord Simon of Glaisdale’s 1994 Motion, which many noble Lords have cited today, about our unfettered freedom to vote on subordinate legislation, which of course is contained in the Companion. It was also referred to particularly by my noble and learned friend Lord Wallace of Tankerness.
But as it happened, a few months before that debate, the Joint Committee on Conventions chaired by the noble Lord, Lord Cunningham of Felling—who I was very glad to hear speak today—had published its report. I also quoted paragraph 216 of that report in the chapter relating to secondary legislation, which again referred back to the merits committee:
“The Lords SI Merits Committee considers that powers and conventions in this area are adequately codified in each SI’s parent Act and in the Companion, and that nothing further is called for. Parliamentary scrutiny of SIs is a growth area; the power to reject SIs gives Parliament ‘leverage’, and should if anything be exercised more, not less”.
The report went on to broadly agree, apart from that final sentiment, that the power should not be exercised frequently but that there was no constitutional convention against doing so, and that indeed it was legitimate to threaten defeat in a number of specific circumstances, one of which relates to special attention being drawn by the Secondary Legislation Scrutiny Committee. That particular occasion fell foursquare within the terms set out by the Cunningham committee. At the time the House, as it does, listened carefully and
accepted that the Cunningham report was essentially correct, and I believe that the vote reflected that, by a narrow margin.
I believe that the report still makes good sense, and that is why I was delighted to hear from the noble Lord, Lord Cunningham, today. It is given weight by the fact that the committee chaired by the noble Lord, Lord Goodlad, with a Government and a chair of a different party stripe, subsequently took a not dissimilar view and made sensible suggestions about returning SIs which had been rejected and were coming back to this House.
A number of noble Lords, including the noble Lord, Lord Strathclyde, himself have mentioned the fact that back in 1999 or 2000, the noble Lord seemed to agree with those on this side of the argument. He referred to his statement about declaring the convention dead, and all credit to the noble Lord, Lord Grocott, for digging out further compromising statements by the noble Lord, Lord Strathclyde. After that, however, the noble Lord seems to have done a complete about-face both in his evidence to the Goodlad committee and now in this report. His views seem to have changed, and the shadow Leader of the House referred elegantly to the fact that when Ministers are in government they take a somewhat different view. The noble Lord, Lord Cormack, took a rather more crude approach, if I may say, but used a none the less vigorous expression in terms of the “Corporal Jones rule” that we must now refer to, and I entirely agree. But to be quite fair, the noble Lord, Lord Davies of Oldham, made exactly the same points when the casino order was up for debate, and I believe that life was ever thus.
By contrast, we in this House should remain consistent in the absence of wider reform of the Lords. We should stand on the very firm ground established by the reports of the noble Lord, Lord Cunningham, and of the noble Lord, Lord Goodlad, and not on the shaky arguments set forth by the report of the noble Lord, Lord Strathclyde. Governments often huff and puff, but they benefit from reconsidering a measure when it is defeated in this House. In the case of the casinos order, the Government of the time, under Gordon Brown, could have brought back a new order or rerun the process of selection. But they did not. That speaks volumes, as does this Government’s acceptance of the vote on tax credits.
To give credit where it is due, the report of the noble Lord, Lord Strathclyde, has stimulated debate. But I urge all sides to consider some of the ideas suggested to do far more effective scrutiny of legislation and to have far more effective primary legislation in terms of the way in which powers are delegated, perhaps through another Joint Committee such as that established previously. However, I urge this House to take the Strathclyde report no further.
8.45 pm
Lord Balfe (Con): My Lords, I begin by welcoming the maiden speeches of our two new Members. I have not been privileged to know the noble Lord, Lord Darling, who was in a different establishment from me. But I served in the same Parliament as the noble Baroness, Lady Bowles, who was a very widely respected United Kingdom chair of one of its committees. In the
European Parliament, many people look and say, “What country are you from?” and not “What party are you from?”. She represented our country admirably during her period as chair. I am afraid that that is about the only thing I am going to say that is not controversial.
First, it is no use having a House of Lords if it cannot defeat the Government. Secondly, I did not contribute to the debate on 26 October but I sat through it. I have to say to noble Lords on this side that not only did we lose the vote, we also lost the argument. The noble Baroness, Lady Hollis, deployed her arguments extremely effectively and legitimately. Paragraph 2.4 of the report of the noble Lord, Lord Strathclyde, states that the 2006 committee,
“concluded that ‘the House of Lords should not regularly reject Statutory Instruments, but that in exceptional circumstances it might be appropriate for it to do so’ … A number of specific circumstances were identified, for example, when the provisions of an SI were of the sort more normally found in primary legislation or in the case of certain specific orders”.
There are three areas in that where this vote was justified. First, the House does not regularly reject; it does that very seldom. Secondly, there were exceptional circumstances and the fact that the whole issue was withdrawn by the Chancellor is a pretty clear indication of that. Finally, surely expenditure of this level should be in primary legislation.
There has been a mission creep in SIs over the years. They are seen as a very convenient way for the Minister to get something put through the Commons where, as someone has said, the first reaction of any MP to being put on the SI committee is, “Why me?” and the second is, “How long do I have to stay here?”. The SI procedure needs looking at. It is not the reference as to how we deal with it in this House; it is the whole procedure and the way in which this mission creep has allowed SIs to get a place in the British constitution and law making that they were never intended to have.
I am reluctantly in favour of option 3 as a starting point. Above all, if we are to change the regulations, we have to have consensus. Having been in both major parties, I am always conscious that one day the positions will be reversed. We have to make the democracy of this House work. In other words, we cannot say, “We have a majority today and we are going to run away with it”. Whatever way option 3 is developed, we have to have a consensus broadly across the House.
Going back to what I said as regards the Lords having to be able to defeat the Commons, for 10 years in the European Parliament I was fortunate to have a job which took me around the Community on behalf of the Parliament. I can claim to have been in every Chamber of every Parliament in the original 15 member states, before the big enlargement of 2004. Whatever our defects may be, there is great admiration for the fact that the House of Lords is seen as an independent and an intellectually credible Chamber. I do not want to get into trouble with too many embassies, but if noble Lords look at a number of other Chambers, the Irish Chamber is completely tribal, to the point where, if the elections for the second Chamber produce the wrong result, the Prime Minister can top up the second Chamber to give the Government a majority.
Lord Balfe: That would be a nice thing, would it not? The German upper House has very circumscribed powers. It basically looks after the Länder. It divides its powers with the lower House. It has very little say in the way the federal republic is run, other than within its circumscribed limits. The French upper House is a body of people who are largely delegates from their regional authorities. We all know how that happens: “Pierre is the leader and Françoise, she’s the number two, and we must give the committee on education to so-and-so”. Then they get to the end of the list and say, “Christ, we’ve got to send someone to Paris. Oh, I know: Jean-Marie has been a really good servant of this House and he does like travel, you know”.
There is no perfect way to construct a second Chamber, but we have one. It is a valuable second Chamber. We have to safeguard our rights, one of which is to say to the people down the corridor, “You’ve got it wrong”. If we ever said it at the right time, it was on 26 October, when we said to them, “You’ve got it wrong”, and what did they do? They agreed with us and actually withdrew it. Let us not lose sight of the fact that the vote was followed by decisive government action that basically accepted that this Chamber was right, even though I was, as ever, in the wrong Lobby.
8.51 pm
Lord Gordon of Strathblane (Lab): My Lords, the fact that the report by the noble Lord, Lord Strathclyde, was commissioned as part of a somewhat hysterical overreaction to the defeat that the noble Lord, Lord Balfe, just referred to should not blind us to the fact that it is none the less a very good report. I congratulate him on the speed with which it was produced, its brevity and the contribution of his expert advisers.
The report is a very good start to a debate that needs to commence very quickly because of abuse of SIs not by this Chamber, but by successive Governments dating back over a number of years. The quotation that we heard from the forthcoming Scotland Bill is simply one indication of what the noble Lord, Lord Cormack, earlier referred to as a Christmas tree on which to hang baubles all over the place. The way legislation moves through is a joke. When I came here there was a statutory instrument in a field to which I was vaguely related that required a small amendment. The Chief Whip told me, “Sorry, we don’t do that. We can either vote to veto it or not at all”. That is ludicrous. If statutory instruments are part of the legislative process, they should be subject to the same rules. We must move in that direction. I am quite happy to lose vetoes. Vetoes do not matter. They are, in fact, equivalent to a nuclear option: they are an inhibiting factor rather than an encouragement to proper dissent.
On page 6 of the report, the noble Lord, Lord Strathclyde, states that,
“I believe it would be appropriate for the Government to take steps to ensure that Bills contain an appropriate level of detail and that too much is not left for implementation by statutory instrument”.
That is a very polite way of agreeing with what the Hansard Society says today: that the distinction between
the two has long since been abused by successive Governments and we need to start doing something about it.
Option 1 cannot really be a serious option; it is a bit of a joke. Meg Russell very kindly said that it is probably there to make the other two options look attractive. That is perhaps a legitimate objective. Option 2 is essentially staying the way we are, which I do not think works. I would go for option 3, with some amendments, which would be as follows. First, we should be capable of amending secondary legislation, because in many cases it simply needs a tweak, not a rejection. Secondly, we should have a specific time limit for the Government to respond. Thirdly, this should be decided not by statute but by a further Joint Committee on Conventions.
The statutory option worries me more than somewhat. If Option 3 is delivered by statute, what a temptation there is for a future Government to say, “Look, this worked for this statutory instrument stuff, why don’t we stop them doing that with primary legislation as well?”, and we will end up with legislation preventing us offering more than token opposition to anything the House of Commons puts through. I disagree with the noble Lord, Lord Crickhowell: the enemy here is not the House of Commons but the Government—the Executive. The Hansard Society pointed that out in its document published this morning. The noble Lord quoted the reference in that document to a “flawed process” becoming a total farce. The next sentence in that document stated that such a process would neuter the House of Lords. The enemy is not the House of Commons but the Government. They are the only people who would benefit from our being neutered in this manner.
I come to my final point. I am trying to save time to allow those noble Lords who are still trying to get something to eat to do so. It was not our vote that changed the stance on the tax credits issue; it was the fact that it struck a chord within the Conservative Party, some of whose members realised that this was a ghastly mistake and they had better get out of it very quickly. They at least had the sense to change their minds. As has already been pointed out, had the Government wanted to introduce such a measure, there are thousands of ways in which they could have done it. In fact, they dropped the whole idea altogether despite all their claims that it was an election pledge and we could not possibly vote against it because they believed in it so firmly. Nevertheless, they ditched it very quickly in the Budget.
The important thing that we do is focus attention on something and MPs then ask themselves, “My God, I didn’t vote for that, did I?”. Then they realise the mistake they have made and they change their minds. It is the fact that they change their minds that matters and it is that power that we need to retain. Vetoes are unnecessary. I am quite happy to have time limits reduced from a year to six months; it does not worry me at all provided that you give MPs enough pause to have a chance to think again.
8.56 pm
Lord Wigley (PC): My Lords, I enter this debate from a somewhat different angle in that I am only here—that is, here in this Chamber—because of statutory
instruments. The reason Plaid Cymru changed its policy in 2007 and decided to accept an invitation to put forward three names for this House was specifically related to the provisions of the Government of Wales Act 2006, which were then coming into force. That Act allowed the National Assembly for Wales to legislate on devolved matters, but only if orders were passed by both Houses of Parliament in each specific instance in which the Welsh Government wished to legislate. In practice, that meant that the unelected House of Lords could block the wishes of the elected Government of Wales. If the wishes of Wales could be frustrated in such a manner, we felt that we should avail ourselves of the three places on offer and make the case for Wales in this Chamber. We were warned, incidentally, by our friends in the SNP not to believe promises made to us, and I am afraid that events rather proved the SNP right.
It was not until January 2011 that I took my place in this Chamber. Within two months, there was a referendum in Wales through which primary legislative powers were accorded to our National Assembly, and the need to get orders for that purpose through this Chamber ended. Sadly, the use of such orders to constrain the powers of the Assembly will arise again in the context of the forthcoming Government of Wales Bill—a proposal that is currently highly controversial in Wales.
In my five years here I have had opportunities to debate numerous orders. One thinks of the pneumoconiosis orders, for example, so relevant to industrial dust sufferers in Wales and elsewhere. Statutory instruments are an essential part of the legislative process. To the extent that this Chamber has a legitimate role in the process of formulating and amending legislation, that process must include secondary legislation as much as primary legislation.
In the context of the Strathclyde review—I congratulate the noble Lord, Lord Strathclyde, on his brevity and focus—a number of detailed issues need clarification, and previous speakers have alluded to some of them. The noble and learned Lord, Lord Judge, in his excellent speech highlighted Henry VIII powers. Incidentally, as the noble Lord, Lord Williams of Elvel, mentioned a moment ago, those powers are today being used in a draconian manner. Clause 42 of the Immigration Bill gives Westminster Ministers powers by regulation to amend, repeal or revoke any enactment of the National Assembly for Wales or the Scottish Parliament in the context of the children’s measure in which that provision is located.
There is one detailed implication that I should like to highlight tonight, which is the acceptability of legislation that has been passed over the years on the basis of details being fleshed out by statutory instruments or updated by such a process, with the underlying assumption that those instruments will be adequately scrutinised. If there had been any question at the time of the passing of the original Acts that the orders would not be scrutinised, or might be subject to a much weaker form of scrutiny, those primary Acts might not have been passed, or at least not in their eventual form. MPs and Peers might have insisted on greater detail in the Bills. That begs a far-reaching question: does changing the way we deal with orders
trigger a question as to whether the original Acts, under which those orders are made, lose some of their legitimacy?
I first entered the House of Commons in 1974, when there were some 2,000 statutory instruments each year. Since that time there has been an ever-increasing dependence on statutory instruments to fill in the detail that has been omitted from primary legislation, so that, in 2001, when I left the Commons, there were more than 4,000 statutory instruments. This is unsatisfactory for two reasons. First, orders cannot be amended and so the two Chambers are left with draconian choices of voting them down or approving what they know to be deficient. Secondly, the House of Commons just does not seem to have the time, capacity, or interest in giving secondary legislation the scrutiny it needs.
If ever there is a justification for having a second, revising Chamber—and I believe that in the UK context there is such a need—then it is to do the detailed revising work that the first Chamber has been unable to undertake adequately. If that role is taken away from this Chamber, or our powers are eroded to the extent now being considered, this begs the question of the very purpose of this Chamber. Let us remember that, once the principle of restricting the powers of this Chamber to intervene in secondary legislation has been accepted, it is only a short step thereafter to curtail its powers to amend primary legislation—arguments about which will no doubt be made by Governments who want their programmes bulldozed on to the statute book.
That brings me to the nub of the argument as I see things. It is perfectly reasonable for people outside this Chamber to argue that an unelected House should have no right to amend primary legislation or to block secondary legislation. After all, in any democracy, it is the elected representatives of the people who should legislate on their behalf. It is my view that, until we have an elected second Chamber at Westminster, the role of this Chamber will always be limited and, to a large extent, unclear. We can argue the details of any electoral process necessary to give this Chamber legitimacy but, eventually, we will have to face that reality.
The noble Lord, Lord Foulkes of Cumnock, was absolutely right in saying that these matters, therefore, must be viewed in the overall context of the future of Parliament itself. It is my view that the Strathclyde proposals bring that day of a democratically elected second Chamber very much nearer. I believe that they will have two direct consequences, if they are implemented. First, far more legislative detail, currently consigned to statutory instruments, will have to appear in primary legislation with all that that means in terms of ensuring adequate scrutiny, as indeed the noble Lord, Lord Strathclyde, has himself recognised. Secondly, to legitimise that necessary scrutiny, the second Chamber—to give it an undisputed role in formulating legislation—will have to become a directly elected Chamber. The Strathclyde review has far-reaching consequences and, in going down that path, we should do so with our eyes open and a willingness to embrace those consequences.
9.03 pm
Lord Cope of Berkeley (Con): My Lords, those of your Lordships who have been Members of this House for a few years may remember that I was the Opposition Chief Whip for some years during Mr Blair’s Government. That Labour Government did not have a majority in this House and nor did we. Sometimes, when we had support from other parts of the House, we could and did use the Lords’ full powers, as has already been referred to on various occasions, but we did so sparingly. I am grateful for that word, which was suggested by the noble Lord, Lord McNally, as the correct way to refer to our use of those powers—and, for that matter, other parties’ use of them. That was of course because we respected the role of the elected House and recognised our unelected status here, but also because we did not wish to build up the case for the abolition of the House; in passing, I do not agree with the noble Lord, Lord Wigley, in what he just said, but he will not be surprised by that at all. Both those considerations are still entirely valid.
Rightly or wrongly, the whole issue of statutory instruments and their use—it goes far wider than my noble friend Lord Strathclyde’s report—has now been put on the table. That is as a result of the ingenuity of the noble Baronesses, Lady Hollis and Lady Meacher. My noble friend’s report is the best course immediately in dealing with the situation that has arisen. I am in favour of option 3, but it needs a little further thought before we implement it. Of course it is right that this House should not be in a position to entirely overrule the elected Chamber. At the same time, we should place secondary legislation on a basis more nearly the same as that of primary legislation. If my noble friend’s proposal has logic, it implies—it does not actually say it—that affirmative instruments should always be debated first by the House of Commons and secondarily by this House. That is usually but not always the case, and it would need to be.
Another aspect has drawn a lot of attention in this debate: when there is to be a second Commons consideration, it should always include an opportunity for debate. That is easy to say, but we should recognise that it involves alterations to the Standing Orders of the House of Commons and is not within our gift. However, it should be part of what you might call the deal. The opportunity for debate is more important, and actually a better approach, than the idea of a particular time lapsing after a defeat in this Chamber.
As I said, this debate has gone a lot wider than just the immediate considerations that my noble friend dealt with. The table in appendix C of his report suggests that the number of statutory instruments has remained broadly static since 1997, but a longer view shows that they have considerably increased in both number and importance over the years—certainly in the time that I have been in one or other House. Particularly after the speeches of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Williams of Elvel, I subscribe to the view that the number of statutory instruments has increased, is increasing and ought to be diminished. I am also a supporter of the Hansard Society’s call in its note on the Strathclyde
proposals that there should be a new and wider review on the preparation of legislation, on the lines of the excellent 1975 report by my late friend Lord Renton. It is regrettable that David Renton’s report was only partially implemented at that time, and of course it went a lot wider than this issue. It called for an overall look at the process of drafting legislation in the first place, and therefore what goes into a statutory instrument, for example, and the way in which legislation is debated once it gets into the two Houses of Parliament.
I also support the suggestion in my noble friend Lord Strathclyde’s report that further thought needs to be given to the precise definition and effect of Commons financial privilege. We are all aware of the general idea, and of some of the ways in which it impinges on primary legislation, but it needs further thought as to how it should work in respect of secondary legislation.
9.10 pm
Lord Morris of Aberavon (Lab): My Lords, I, too, express my thanks to the noble Lord, Lord Strathclyde, and to his advisers for the speed with which he has produced his report. My contribution today will draw on my written submission to the noble Lord and is much wider than his terms of reference. My noble friend Lord Darling, whose most excellent speech I welcome, said that he was concerned about piecemeal changes. It is my long-standing belief that piecemeal reform will not do.
I played a small part in encouraging my friends to set up the Kilbrandon commission on the constitution. It was effective as a catalyst for devolution and major legislation. I believe that there should be another constitutional convention to consider, deliberate on and opine on a wide range of options and, having done so, with a hope for a more permanent and comprehensive settlement for Parliament as a whole.
In my time, I have seen many attempts at House of Lords reform. Drawing a veil over the Clegg-inspired reforms, my mind goes back to the joint attack of Michael Foot and Enoch Powell on the reform attempt in the 1960s. When the plug was pulled on that Bill, Michael Foot uttered memorable words regarding the efforts of the two junior Ministers who were left in charge of it. They were the future Lord Merlyn-Rees and the noble Lord, Lord Elystan-Morgan, whose speedy return to this House we wish for. Mr Foot said that never had so much bravery been shown,
“since the boy stood on the burning deck”.—[
Official Report
, Commons, 14/4/69; col. 885.]
And that was the night the plug was pulled on the Bill.
I confess that I did not vote in the tax credit Divisions last October. As many noble Lords have said, the Government should not have used the statutory instrument procedure, with its inadequate discussion in the Commons, to deprive a large number of the poorest people like those whom I had the privilege of representing in the Commons for more than 41 years. But I do not buy the argument that a convention was broken. In the words of my noble friend Lord Richard, primary legislation should have been used. Nevertheless, it was not right to deny the Commons its right to change taxation, despite the machinery adopted.
I believe in the paramountcy of the elected House and that there is a way to put that beyond peradventure for almost all occasions and, at the same time, to spell out a role for our own non-elected House for the future. I surmise that my radical solution—the one that I would propose—will not appeal to most of your Lordships. I believe that the way forward is to revisit the Parliament Acts of 1911 and 1949 together, to learn from the simple mechanism that they adopted. Incidentally, we forget the rather plaintive words of the 1911 Act’s preamble as to the substitution of a hereditary House with a popularly-based House. It said that,
“such substitution cannot be immediately brought into operation”.
Rather than pursuing that aim more than 100 years later, my suggestion is that we should copy and adopt that machinery for this House’s power to delay legislation which shortened the period in the 1911 Act to the 1949 Act by what amounts to one year. I propose removing this House’s powers to delay legislation altogether—hence, I am sure, it is too radical for most of your Lordships. The shearing away of this House’s power to delay would result in this House having power only to consider Commons legislation—in short, to review it and scrutinise it. This would apply to both primary and secondary legislation, with which the noble Lord, Lord Strathclyde, has been wrestling.
This House could of course then debate amendments, and any amendments made would be returned to the Commons. They would have the benefit of our discussions. If, then, the Commons disapproved of our amendments, that would be the end of the matter. The Commons, unless directed to the contrary, would present the Bill for Her Majesty’s approval and it would become an Act of Parliament on Royal Assent being signified thereto, notwithstanding that the Lords had not consented.
It would be essential to include a maximum period for your Lordships to consider any particular Commons Bill, so that consideration did not become delay by another name. When I said earlier that I was dealing with almost all occasions, of course the present exclusion as amended of the Parliament Acts as regards extending the maximum period of the length of the Parliament would remain. That would be fundamental.
My simple amendment would end the argument about the overuse of statutory instruments and reaffirm the primacy of the Commons in all respects. There would then be no danger of gridlock between Commons and Lords. I was a witness to gridlock between the Senate and Congress in Washington on that fateful weekend in July 2011. It is my belief that the result would be a substantial weakening of any case for an elected House, and it would be a matter for another time to consider the fettering of the Prime Minister’s power to top up, in the words of the noble Lord, Lord Balfe, the membership of this House. The noble Lord’s words regarding the Irish Senate were perhaps too close for comfort.
9.17 pm
Lord Beith (LD): My Lords, if I were to explain why I profoundly disagree with the noble and learned Lord, Lord Morris, I would lose the time I need to say what a wealth of experience came from the two maiden speeches that we heard today—experience of both the Treasury and the European Parliament. My noble
friend Lady Bowles’s speech would repay careful reading in
Hansard
by anybody who wants to take these issues any further.
I am a new boy in this House; my experience is of the ineffectiveness of the House of Commons in dealing with delegated legislation. In her Statement, the Leader of the House said that,
“as a revising Chamber … we complement the work of the other place”.—[
Official Report
, 17/12/15; col. 2189.]
I have to say that there is an awful lot of complementing to be done. There is complete reliance on the extensive work carried out in this House on statutory instruments. That should remind us of the danger of weakening the ability of this House to question and challenge the Executive and require them to think again. The very rare instance of an order being defeated by your Lordships underpins the ability of this House to question and challenge ill-thought-out delegated legislation, particularly when it deals with matters of principle or policy, which should be dealt with by primary, amendable legislation.
I should add that my experience in the Commons includes the one occasion when a statutory instrument was overturned by the House of Commons. It related to paraffin oil price control, and it was a mistake. We shouted “Aye” in support of the annulment Motion, the Prayer, and the Government Whip forgot to shout “No”, as a result of which one of his colleagues had to go along to the Palace and come back in his tailcoat with his white wand of office and bring back a Message that the Queen was happy to comply with our Prayer. As I said, that was not intended to happen.
Indeed, in the previous Parliament, the average amount of time spent in the House of Commons Chamber debating delegated legislation was just over five of minutes per day. You might say that it is all done in committees. One of the means by which late-night sittings were largely abandoned in the Commons in pursuit of family-friendly hours was by consigning almost all statutory instruments, which we used to have to debate between 10 pm and 1 am, to committees, but the situation in the committees is not much better than in the Chamber. The noble Baroness, Lady Smith, has referred to the press-ganged MPs who want to know whether it will be over in 10 minutes or whether they have to be there for 20. If there is a negative-procedure instrument, no meaningful vote can take place. Even if the committee votes that it has not considered the instrument, that vote is not reported to the House and no other procedure ensues or follows from it.
This is much more than a minor procedural issue. Governments of all kinds use delegated legislation to enact new policies and principles to change the impact of the criminal law, and amend the very legislation on which the instrument is based, as a number of noble Lords have mentioned. Committees of your Lordships’ House have produced egregious examples of this, such as the Childcare Bill 2015-16, which was described by the delegated legislation committee as little more than a mission statement. Yet even the mildest of the alternative proposals in the report of the noble Lord, Lord Strathclyde, rests on the utterly implausible hope that Governments will,
“take steps to ensure that Bills contain an appropriate level of detail and that too much is not left for implementation by statutory instrument”.
That will never happen. It would be like relying on an alcoholic promising to drink only moderately in future. It is just not realistic.
Why is that? There are several reasons. Often a Bill is introduced before enough work has been done on it. Departments like the freedom to rewrite and extend the legislation as they go along. Frequently the reason is that entirely new provisions are introduced into a Bill at a late stage without time to include key aspects in it. Opposition parties and campaign groups often feel obliged to accept this defective way of legislating, because it is a means of implementing a concession that they have sought and won from Ministers. How often have I heard it said from the Dispatch Box that the amendments are defective, but the Government will accept the principle and implement it by regulations? The phraseology gives it away. It is a matter of principle and importance, but it will be done by regulations and everyone says that that is fine. It is a victory, but one that undermines the effective scrutiny of legislation.
My conclusion is that we have to plan for the real world as we know it to be. The integrity of the legislative process and its ability to protect the rights of the citizen will always be threatened not just by the Executive’s fondness for power but also by the short cuts taken very often to promote quite good intentions. It will always be like that. We should therefore continue to develop the scrutiny role to which many of your Lordships devote a great deal of time and effort, and do nothing that could weaken the underlying authority for that role. There is lot wrong with House of Commons scrutiny of delegated legislation, and I believe that improvements could be secured and discussion between the Houses could well be profitable. However, the basis on which the House of Lords gives or very rarely withholds its consent for statutory instruments is basically sound. It is not broken and we should not risk weakening the work of this House by trying hastily to fix it.
9.23 pm
Lord Forsyth of Drumlean (Con): My Lords, at this hour even I can think of very few original things to say, but I congratulate my noble friend Lord Strathclyde on an excellent report, which provides a basis for going forward. I suggest to the Prime Minister that he invites him to take over from Sir John Chilcot, in order to finish Sir John’s report. I apologise that I had to leave the Chamber for a meeting and missed the maiden speech by the noble Lord, Lord Darling. I look forward to reading it. We all owe him a great debt, especially now that oil prices are down to $32 a barrel in Scotland, and I look forward to seeing his contributions.
Let us be frank about this: it is unfortunate that we are having to discuss this in the context of the tax credits regulations of 26 October. That was not the Government’s finest hour—let us be fair about that. I tried on several occasions through Ministers to get information on the impact of the regulations on families, who would lose and how much would they lose, and in the end I had to rely on the Institute for Fiscal Studies. The consequences, had those regulations been implemented, would have been disastrous for many vulnerable families up and down the country, and I certainly did not come into politics to do that, and
nor, I believe, did the Chancellor or many of the MPs who voted for them. The facts of the matter were that the stushie in this place drew people’s attention to how savage and immediate the impact would be and to the consequences for the poorest families and for the Conservative Party and the Government because the political consequences would have been very severe. I therefore say to the noble Baronesses, Lady Manzoor, Lady Meacher and Lady Hollis, thank you so much for what you have done to help the Conservative Party in the country.
I would have supported the Motion moved by the right reverend Prelate the Bishop of Southwark. Indeed, my noble friend the Leader of the House almost invited us to do so, if you look at column 979 of Hansard for 26 October. That would not have been a fatal Motion, but nor were other Motions, other than that moved by the Liberal party, fatal Motions.
My noble friend the Leader advised us that if we voted for those Motions:
“It would have the practical effect of preventing the implementation of a policy that will deliver £4.4 billion of savings to the Exchequer next year—a central plank of the Government’s fiscal policy as well as its welfare policy. It is a step that would challenge the primacy of the other place on financial matters”.—[Official Report, 26/10/15; col. 979.]
Actually, the impact was to make the Government think again. No one in this House suggested that the policy should not be implemented. The argument was that it should be phased in over a period of time, but the Chancellor chose to abandon it altogether.
I am not sure whether I am grateful to the noble Baroness, Lady Smith, for starting to quote things that I have said in her speeches, but I did indeed say that if the Motion moved by the noble Baroness, Lady Hollis, had not been passed by the House, the tax credit changes would immediately have become law and the Government would not have had an opportunity to think again and make the necessary changes. Indeed, the key point is that if the Chancellor really felt that the primacy of the House of Commons had been challenged, it was up to him to table exactly the same Motion again the following day. He could have done that. He chose not to do so because, as my noble friend pointed out, she had been to see him and had told him of the feelings in the party and in the House and he had undertaken to think about it again. That is what I thought we all came here to do. I thought that is why we are all here at this hour of the night—to try to encourage the Government to think again if they have got it wrong.
The response from those around the Prime Minister and from the Prime Minister himself was a tad ungrateful. It was as if the captain of a ship which had been driven on to the rocks by the first mate after being safely rescued responded by inviting his crew to begin scuttling the lifeboat. That was the effect. It may have been unwise to vote for the Motion moved by the noble Baroness, Lady Hollis, which was not fatal, but it was certainly not out of order. As has been pointed out by a number of people in the course of this debate, the report of the Joint Committee on Conventions, which was approved by both Houses of Parliament, makes the position crystal clear.