The effect of our intervention was to give the Commons time to see the impact of their proposals, and I do not believe—perhaps the noble Baroness, Lady Hollis, can help me—that had the Chancellor of the Exchequer brought the proposal back a second time this House would have rejected it for a second time.

So what is the problem that we are trying to solve here? In his report, my noble friend Lord Strathclyde points out that there were two Motions on SIs on consecutive days. Just because two buses come along at once does not mean to say that you have to change the entire bus route. The second Motion was defeated; it failed because your Lordships chose to vote accordingly. It is true that on very rare occasions the House has voted against SI Motions but, according to my noble friend’s own report, there have been 55 occasions when the House has refused to vote through Motions of that kind, so those five have to be seen in that context.

I accept of course, that something has to be done about the use of statutory instruments and secondary legislation, and option 3 probably has within it the means of a way forward. What I do not accept is that this should be done by primary legislation. The conduct of Parliament is a matter for Parliament, not the Executive. The Executive is accountable to Parliament, not the other way round. I believe that we need to have a Joint Committee to review those procedures and agree them. The joy of my noble friend’s report is that it illustrates how wide the context is in which this needs to be looked at in terms of the Standing Orders of both Houses.

I say to my noble friend the Leader of the House that despite Mr Corbyn’s best efforts, we will be in opposition one day. My noble friend Lord Strathclyde says in his foreword that the Lords must,

“complement the work of the Commons and not … block its will—too often”.

We have never blocked the will of the House of Commons. He says:

“It would be regrettable if the Lords simply became a highly politicised ‘House of Opposition’”.

Quite so, but it would be equally regrettable if the Executive were to drift towards treating Parliament as an irritating inconvenience and limited its ability to ask the Government to think again.

9.31 pm

Lord Howarth of Newport (Lab): My Lords, we do not have a constitutional crisis on our hands. We are dealing with two problems, both of which are much more mundane: the problem of Ministers feeling frustrated and sore, and the problem of a system of scrutiny of statutory instruments that we all agree does not work well.

As to statutory instruments, the vote on tax credits and the complaints about that, it is clear that it was not your Lordships who breached any convention governing relations between the two Houses. As we have noted, the report of the Joint Committee on Conventions, agreed unanimously by both Houses, made it clear that the House of Lords is entitled to go so far as to vote down a statutory instrument in exceptional circumstances, and the circumstances attending

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the tax credits SI were exceptional. It is entirely outside the conventions of Parliament, as is made clear in

Erskine May

, that the Chancellor should have tried to sneak through Parliament in an SI radical and massively contentious legislation on tax credits. He was not candid about the impact of his measure, so that the House of Commons voted it through in ignorance of what it would mean for millions of people on low incomes. It was this House that ensured that the appalling damage the SI would have done to so many of our fellow citizens was correctly understood by Parliament. The Government duly thought again and withdrew the measure.

Wise Ministers recognise that effective opposition benefits the quality of government. Indeed, it has long been one of the most valuable roles of this House—performed sparingly; for sure, only on rare occasions—to rescue a Government from themselves. The pattern in these events is that a Government take it into their head to do something ill-considered and unacceptable; the House of Commons wakes up to what is amiss too slowly; the House of Lords obliges the Government to pause and think again; the public are delighted; government Back-Benchers are relieved; and Ministers go into a sulk and get all huffy about the constitution, but the misguided element of policy is dropped, tempers die down and life then returns to normal.

This Government have behaved true to the pattern so far. First, there was an absurd briefing that the House of Lords was to be suspended. Then there was the threat of the mass creation of new Tory Peers on top of what we have already had. Then the heavy artillery was rolled out: the noble Lord, Lord Strathclyde, was commissioned to carry out a review. As the noble Baroness, Lady Williams, noted, the noble Lord does not bark, but on behalf of the Prime Minister he growled in his foreword that,

“the patience of the Commons is not unlimited”.

Then, on page 18, he resorted to the assertion that this House had acted in defiance of the Government’s “electoral mandate”. But the Conservative Party never told voters that it intended to make massive cuts to in-work benefits, and it won a House of Commons majority of only 12 seats on the votes of just 24% of the total electorate, so the claim that the Lords defied an electoral mandate is tosh.

In his menu of recommendations the noble Lord set out an outrageous option 1, to remove the House of Lords altogether from consideration of SIs. Almost as threatening to the principle of bicameral government and effective accountability, he also proposed that the House of Commons should consider annexing a greater range of SIs, not just on financial matters, to Commons-only procedures. He made this proposal, notwithstanding that scrutiny by the House of Commons of SIs is perfunctory in the extreme. In committees on SIs, all too many MPs scrutinise their Christmas cards more thoroughly than the legislation before them. If the House of Commons persistently fails to scrutinise legislation adequately, of course more responsibility falls on the Lords, and we should not shirk it. Finally, the noble Lord proposed, as a so-called compromise, statutory regulation of the relationship between the two Houses.

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I dread to think what the process of legislation that the noble Lord has advocated would be like. Consideration of such a Bill would be prolonged and expansive. The House of Lords would not—surely it should not—willingly give up its present power to strike down SIs. At the very least, agreement would need to be secured on three points. The first—relatively easy to deal with, but insufficiently guaranteed in the prescription of the noble Lord, Lord Strathclyde—would be that Commons reconsideration must be genuine, with adequate time given to debate and proper explanation of the Government’s position. The second agreement that would be needed is more complex still. It would have to be agreed that statutory instruments were not to substitute for primary legislation. I agree with those noble Lords who have said that we need a Joint Committee of both Houses to review and clarify the appropriate use of SIs and the appropriate means of scrutiny of them in both Houses of Parliament.

The third, and much more difficult condition, but which is essential for the health of Parliament, would be that a limit must be placed on the Prime Minister’s power to pack the government Benches in the Lords and thus disable this House by another means. Surely we will make better progress if we apply ourselves to a renewal of the conventions rather than attempt such legislation.

It is healthy if Governments are nervous of what it is in the power of Oppositions to do. That is a strong argument for our not renouncing fatal Motions. However, it is not an argument against the development, within the conventions, of an additional power that is less devastating than a fatal Motion but less futile than a regret Motion. The precedent has now indeed been set for use by this House, on an important issue, of a delaying power where an SI is concerned. A series of reports, the latest being the report of the noble Lord, Lord Strathclyde, have proposed the formalisation of a new delaying power on SIs exercisable by the Lords. I hope Ministers will now be willing to accept that. I do not see, however, that such a power would need to be created by statute, and I see good reasons why it should not.

The kind of mature relationship that the two Houses need cannot be legislated for. As Professor Dawn Oliver says in her excellent pamphlet, Constitutional Guardians: The House of Lords, what is required in dealings between the Houses is emotional intelligence. The noble Lord, Lord Strathclyde, knows this really. He opens his report by saying, rightly:

“Conventions in parliament are a cornerstone of our Constitution”.

But he then wrings his hands and despairs of conventions any longer being able to work.

My advice to the Government, if I may be so bold, is to lighten up, and certainly to stop trying to bully this House. It is time now to restore to working relations between the Houses, and within this House, an atmosphere of tact, forbearance, proportion, mutual respect, courtesy and good sense.

9.39 pm

Lord Goodlad (Con): My Lords, I join other noble Lords in congratulating my noble friend Lord Strathclyde on his report. Its recommendations on secondary

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legislation are in line with those of the royal commission, chaired by my noble friend Lord Wakeham, and those of the report of the Leader’s Group on Working Practices, which I chaired—option 3 in my noble friend’s report—to create a new procedure. I think that is the way forward. Although I entirely agree with the noble Lords, Lord Howarth and Lord Cunningham, that that convention must be maintained, the time has come for something more to be done.

I strongly support the report’s suggestion that future Governments should ensure that Bills contain more detail. I agree with my noble friend Lord Jopling and the noble and learned Lord, Lord Judge, that less is contained in primary legislation, with implementation by statutory instruments, and that Henry VIII clauses should be discontinued as far as possible.

In my experience, your Lordships’ House plays an extremely effective role in scrutinising secondary legislation. When I chaired the Secondary Legislation Scrutiny Committee, which is now chaired by my noble friend Lord Trefgarne, its work—not mine I hasten to say—led not only to well-informed debates in your Lordships’ House but to essential revisions to ill-prepared statutory instruments before they ever came to this House. The work of the clerks in this process was, in my observation, beyond praise. I do not see how the other place could in practice do the same job.

The primacy of the House of Commons has been accepted for well over a century. We heard from the noble Lord, Lord McNally, about an elective dictatorship, but I have to say that when I was Chief Whip in the other place for the Government about 20-odd years ago, it did not feel like an elective dictatorship. I see a number of heads nodding on the other side, including those of the noble Lords, Lord Grocott, Lord Howarth and Lord Beith. I do not think that is a danger. What is needed now is a redefinition of the roles of the two Houses.

During recent decades, the world has changed radically—technologically, socially, economically and in every other way. It will continue to do so in the future with ever-increasing velocity, which will lead to the continuation of the torrent of legislation coming before us, and the distinctive roles of the two Houses of Parliament will be ever more important. In the absence of a written constitution, we must proceed, as we usually have, by negotiation, compromise and agreement. There are many details to be addressed in option 3 of my noble friend’s report. We can make progress only by agreement, which would be best achieved by discussing his excellent report, as my noble friend has suggested, in a Joint Committee of both Houses, despite the fact that we do not know which way it will go off.

9.43 pm

Lord Lisvane (CB): My Lords, it is a great pleasure to follow the noble Lord, Lord Goodlad, whose 2011 report—particularly at about paragraph 154 in the context of today’s debate—is a source of great wisdom. The report of the noble Lord, Lord Strathclyde, is technically an excellent piece of work. I say this not merely because he has been kind enough to refer in it to two works in which I myself had a hand. I cannot

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fault his description of the constitutional background and the procedural arrangements. He has been very well served by his team of expert advisers, all of whom I know well and have worked with, and for whom I have the very greatest respect.

I do not want to be unduly churlish to the Government Front Bench, because I suspect that it was not master of its fate, but what happened on 26 October was at least in part a failure of business management. If defeat was likely or possible—and that must have been apparent—then several options were of course open to the Government. They could have delayed and sought some sort of accommodation; they could have achieved what they wanted by inserting new clauses in the Welfare Reform and Work Bill, which was conveniently to hand; or they could have made the required changes in a free-standing Bill, which as the noble Lord observes—and I respectfully agree—would most probably have been certified under the Parliament Acts and would therefore not have touched the sides, so to speak, in your Lordships’ House.

Of course, in the event of defeat on an SI, the option is always there of withdrawing and re-laying. The substitute instrument has to be slightly different to avoid breaching the rule about deciding the same question twice in the same Session, but it does not have to be very different, and that simple pragmatism is always at the disposal of Governments who suffer defeats on SIs in either House.

So what about the three options that the noble Lord has put before us? They need to be seen against the asymmetry of consideration of delegated legislation in the two Houses. This is not in itself a problem, because one of the strengths of Parliament is that the two Houses are complementary and not competing. But that is also a powerful argument against diminishing the role of your Lordships’ House, as the House of Commons is not in a position to take up the slack.

In the latest edition of How Parliament Works—I am not seeking to advertise here but it was written before I left my previous post—I described Commons scrutiny of delegated legislation as a “legislative black hole”. The noble Lord, Lord Beith, has drawn attention to the average time—averaged out per day over a Session—taken in considering SIs in the Commons Chamber.

I hope that option 1, simply excluding this House from the consideration of statutory instruments, will be rejected out of hand. Indeed, I think that the noble Lord is very nearly counsel for the prosecution in terms of the significant disadvantages of this option that he identifies in his report. If it were decided to go down that extremely ill-considered route, I think that the legislation would have to be Parliament-Acted, with all the collateral damage for a considerable period to the Government’s legislative programme.

Option 3, the recommended outcome, has some attractions, although of course it does not guarantee a proper debate at the Commons second stage—a point raised by a number of noble Lords. And it is not without hazard. In the context of Article 9 of the Bill of Rights, I have an instinctive dislike of legislating for proceedings in Parliament. There is a more immediate hazard—and here I take the timely warnings of the

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noble Lord, Lord Crickhowell—because the scope of a Bill, and the relevance of amendments to it, is determined not by the Long Title but by what is actually in the Bill. I do not think anybody can guarantee that there could not be in the Commons more wide-ranging amendment of the noble Lord’s apparently simple proposition—and then where should we be?

Then there is option 2, a non-statutory resolution of both Houses. The noble Lord expresses scepticism about this route and whether it can be achieved because,

“a wide range of different views has been expressed about what the convention is”.

That seems to me an excellent argument for redefining the convention—or, with a nod towards the noble Lord, Lord Norton, the doctrine—probably using a Joint Committee to achieve a cross-party and inter-House agreement rather than rushing to legislation, although I accept that legislation will be there as a potential penalty, should that route fail. If there were to be such a Joint Committee, I agree with many noble Lords that it could be a forum for a much more comprehensive examination of how Parliament as a whole deals with delegated legislation.

Briefly, I have two other observations. The noble Lord suggests that the Government should review, with the help of the Commons Procedure Committee but not with the help of a committee of this House, when SIs should be subject to Commons-only procedures. However, there is a quid pro quo to this. If SIs receive less scrutiny in the Commons than in your Lordships’ House, it must be clearly understood, and delivered, that Commons-only SIs must contain only matter which engages Commons financial privilege and must not be freighted with non-financial matters simply because of the attraction of an easier ride.

My last point is also the noble Lord’s last point. In the review it is almost a throw-away line, but it is the real reason that we are in this fix. The threshold between primary and secondary legislation has been steadily rising, no doubt because SIs are more convenient for Governments, and SIs are being used for matters of policy and principle which should find their place in primary legislation. Both the Constitution Committee and the Delegated Powers Committee have consistently pointed this out, and the searing indictment of my noble and learned friend Lord Judge is still ringing in our ears.

I could wish that we were not in this fix but, now that we are, that is the real mischief that needs dealing with. I think it is reasonable to say that we should expect a striking and sustained change of culture before your Lordships give up any powers over delegated legislation.

9.50 pm

Lord Young of Cookham (Con): My Lords, as the last Back-Bench speaker in this debate—I wonder whether there is some alphabetical bias in the selection of the order of speakers—I join others in commending my noble friend Lord Strathclyde for his report and for his speech introducing the debate. His report is a “best buy” in terms of value for money. Indeed, such good value is his report that the Command Paper publishing it does not even have a price on the back.

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Picking up a point made by my noble friend Lord Forsyth, I wonder whether there are some broader lessons to be learned from this type of inquiry, as the law of diminishing returns sets in quite quickly as the size and length of inquiries develop. With the Chilcots, the Levesons and the Scotts at one end, and the Strathclydes at the other, should we not have fewer of the former and more of the latter? Without being dogmatic, we need more sprints round the greyhound track with a small field, and fewer London marathons, where some entrants find it difficult to finish.

Turning to the report itself, I believe it offers the basis for a settlement. I have been encouraged by the number of noble Lords who have spoken in this debate who have been quite careful not to close the door on further discussions building on what is proposed. There are real advantages for both Houses. I am a recent refugee from the other place after 41 years there and, in my capacity as a former Leader of the Commons, I see real advantages for it, in that the will of the Commons will prevail in secondary legislation as it now does in primary. Indeed, it seems somewhat perverse—a point made by my noble friend Lord Jopling—that the will of the elected House can prevail with Bills but not with the statutory instruments that derive from them.

I would make a number of clarifications. For example, if we were to reject an SI, it must be debated in the other place and not simply approved on a deferred division without substantive discussion; it should be treated like a Lords amendment. As far as this House is concerned, I think that we get a new weapon that is more appropriate to our role as a revising Chamber. In his report, my noble friend Lord Wakeham said:

“At the cost of weakening the formal power of the second chamber … we believe it would actually strengthen its influence and its ability to cause the Government and the House of Commons to take its concerns seriously”.

It is worth reflecting on what might have happened in October had option 3 been available. This House could, of course, have rejected the SI. I suspect that it would have done so by an even bigger majority, because many noble Peers felt inhibited against voting it down for constitutional reasons, and those would have been dealt with under option 3. It would have gone back to the House of Commons with a bigger majority and the House of Commons would have then had to consider what to do with it. We will never know the answer, but my guess is that it would have done exactly what it did in November. The key difference would have been that the House of Commons would have had the last word on the SI and not this House. That is why I think there are real merits in the proposal.

We read on page 18 of the report that the preferred option requires legislation. My noble friend must have come to that decision on the basis of the professional advice that he got from his team. There may be some in my party who will want to legislate straightaway, using the Parliament Act if necessary, but I hope we do not proceed too hastily, precipitating a wholly unnecessary constitutional crisis. There should now be discussions between the parties, and it may be that issues not addressed by the Strathclyde report—for example, the SI procedure in the other place—need to

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be put on the table, together with other issues such as the time lag between rejection by this House and consideration by the other.

The Government could set the tone for constructive discussions by indicating that they are sympathetic to the recommendation referred to by the noble Lord, Lord Lisvane: that about not using SIs where primary legislation is more appropriate. This is not a pain-free decision for the Government, in that it inevitably squeezes out other legislation from their programme if what would have been an SI now becomes primary legislation. However, if the Government were to indicate that they are sympathetic to that proposition, I hope that that would encourage other parties to come to the table to see whether we could then reach all-party agreement on the way forward. If it is then indeed necessary to legislate to introduce option 3, that can be done on the basis of mature consideration and not the hasty, shooting from the hip exercise that may be advocated by some.

9.55 pm

Lord Tyler (LD): My Lords, this has been a fascinating and thoughtful debate. The contributions and the expertise that have been displayed in the past few minutes have been particularly helpful to your Lordships’ House.

I will refer briefly to two remarkable maiden speeches. My noble friend Lady Bowles brings not only professional expertise and experience to this House but particularly interesting experience from the European Parliament. The direction of travel there is to have more democratic control over secondary legislation while in this House this evening it looks as though we might be going in the opposite direction. That is a useful lesson for us. I suspect that the parliamentary experience and touch in the Treasury would never have let the noble Lord, Lord Darling, ride into this House and fall into the elephant trap that the present Chancellor fell into on 26 October. His expertise and experience will be welcome in this House, too.

If there has been a theme during the debate today, it is that this is not a new problem. It is complex, it is not simple—and to that extent we are all indebted to the noble Lord, Lord Strathclyde for trying to simplify it—but it is not new. Therefore, it is up to us to realise that there is no novel, simple one act that could suddenly transform the situation.

As a non-expert, I have at least enough humility to listen carefully to previous wisdom. With the noble Lord, Lord Higgins, and my noble friend Lord McNally, I served on the Joint Committee that the noble Lord, Lord Cunningham, so brilliantly steered in 2006 which produced the report on conventions at the UK Parliament. I read again last night some of the excellent evidence that was put before us on 20 June 2006, when we heard from three distinguished witnesses. This was their first key statement:

“The only inference to be drawn from these proposals is that the Government intends further restriction of the freedoms and powers of the House of Lords. We would start from precisely the opposite premise—the freedoms of both Houses should be upheld and, where possible, extended. We further disagree with the government’s view that ‘codification’ is necessary as a prelude to the reform of the House of Lords. Even if true, which it is not, it could never justify further weakening of Parliament”.

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The delegation that produced that evidence included Mrs Theresa May, MP, then shadow Leader of the Commons; the noble Lord, Lord Cope, then Opposition Chief Whip here—and it was led by none other than the noble Lord, Lord Strathclyde. Members of your Lordships’ House may have guessed that the evidence they gave was given on behalf of the Conservative Opposition. Colleagues may also recall that the Joint Committee was set up by the previous Labour Government because Mr Jack Straw wanted to clip the wings of your Lordships’ House—is that not, too, familiar?—as my noble friend Lord McNally reminded us today.

The evidence of the noble Lord, Lord Strathclyde, continued powerfully:

“‘Codification’ could cause more problems than it solves … We therefore agree with the Government that it would be undesirable to legislate on the conventions and other relations between the two Houses. That would lead to judicial intervention in and resolution of parliamentary and political difficulties”.

I agreed then and I agree now, because there is a real danger that we could drift into justiciable decision-making, which would put us in a very awkward position.

This has been referred to during the debate today by a number of colleagues on all sides of the House, including the noble Lords, Lord Cunningham and Lord Higgins, from the committee, my noble friend Lady Thomas, the noble Lord, Lord Forsyth, who spoke forcefully a few minutes ago, the noble Lord, Lord Howarth, and, most recently, the noble Lord, Lord Lisvane. That is a dangerous route for us to go down without thinking it through very carefully indeed—and I will come to how I think we should do that.

Those witnesses then turned to the specific subject with which we are engaged today. They said:

“The conventions on secondary legislation are equally well understood. We propose no alteration. We uphold the right of the Lords to reject secondary legislation, while considering its use should be exceptional in the extreme. However, there is an important balancing convention to this, namely that governments should not use their majority in the Commons to introduce skeleton Bills as a basis for introducing unamendable secondary legislation”.

There is nothing new under the sun. It has been said again today several times that we have skeleton Bills which have become more and more skeletal.

A reference was made earlier by, I think, the noble and learned Lord, Lord Judge, to the Childcare Bill. I draw the attention of the House to the work done on that Bill by the Delegated Powers and Regulatory Reform Committee, chaired by the noble Baroness, Lady Fookes, and on which I serve. It pointed out admirably that the Childcare Bill was not sufficiently well thought through to put before either House of Parliament. It was indeed so skeletal as not to be worth consideration by either House. Some time ago in the debate the noble Baroness, Lady Hayman, referred to this issue, as did my noble and learned friend Lord Wallace. We believe that that is a major problem so far as the House’s consideration is concerned.

Having previously argued that the convention on secondary legislation was “dead”, the noble Lord, Lord Strathclyde, came before the Joint Committee with a slightly modified view. He said:

“However, on many, many occasions the House of Lords has asserted its unfettered right to maintain its power to throw out

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secondary legislation; I think the custom and practice that has built up, in combination with the long-stop power in the House of Lords, works extremely well”.

He has changed his mind since then.

There was a good deal of support from other witnesses and in the Joint Committee for that approach. I shall quote from the committee’s report. The noble Lord, Lord Norton of Louth, who has also spoken today,

“likewise argues against codifying a convention that the Lords do not reject SIs. He observes that:

(a) It is not agreed that there is any such convention;

(b) SIs do not normally involve ‘great issues of principle’, and any argument in Parliament is usually only about fitness for purpose;

(c) A rejected order can be re-laid;

(d) The power to reject supports the work of the SI Merits Committee;

(e) Power to reject orders under the Legislative and Regulatory Reform Bill will be even more important than power to reject mainstream SIs”.

The work of the Delegated Powers and Regulatory Reform Committee of your Lordships’ House makes his case even more powerful; it is a critical part of our job and it is very effective in undertaking that responsibility.

As has already been quoted once or twice in the debate, the eventual recommendations of the Joint Committee are unequivocal and bear repetition. The committee states that,

“we conclude that the House of Lords should not regularly reject Statutory Instruments, but that in exceptional circumstances it may be appropriate for it to do so. This is consistent with past practice, and represents a convention recognised by the opposition parties. The Government appear to consider that any defeat of an SI by the Lords is a breach of convention. We disagree ... The Government’s argument that ‘it is for the Commons as a source of Ministers’ authority to withhold or grant their endorsement of Ministers’ actions’ is an argument against having a second chamber at all, and we reject it”.

That, like every other recommendation of the Cunningham committee, was not only debated in both Houses, it was unanimously and enthusiastically approved by both Houses.

It was also welcomed enthusiastically—unsurprisingly, since we had accepted so much of his evidence—by the noble Lord, Lord Strathclyde. I find it difficult, as my noble friend Lord Clement-Jones hinted earlier, to understand what precisely has happened to that noble Lord, Lord Strathclyde. The contrast between the evidence to the Joint Committee, written and oral, and what we have heard today and read in his report is so remarkable that it makes one slightly suspicious.

Lord Strathclyde: My Lords, perhaps I may clarify that to the noble Lord, because he has made quite a meal of it. I stand by every word I said until 25 October of last year. On 26 October, it all changed. That was when I got my review. As a result of that, I conducted my review and produced it for the debate today. The noble Lord can poke as much fun as he would like about what I said, but, as I have just said, I stand by every word of it.

Lord Tyler: I do not think that the House fully understands that, and I think that it has taken a more measured view of these issues. Perhaps I may say that it has been all across the House. It has been remarkable

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how much consensus there has been in the debate today. These issues clearly are inappropriately dealt with by an internal government review. These matters are of great importance to the whole of Parliament—both Houses.

The memorandum from the Hansard Society sent to Members today makes a very powerful case on this point. The society suggests an independent inquiry. But I have been arguing for some weeks that an evidence-taking, properly constituted and properly advised Joint Select Committee of Peers and MPs would carry even more authority. During this debate, I have lost count of how many Members, from all sides of the House, have supported the idea of a new Joint Select Committee. It would meet the requirements of so many Members who have contributed today. The noble Lords, Lord Cormack and Lord Cunningham, and a number of other Members have said that that is the appropriate way for Parliament together to think through these issues. This is not us against the House of Commons. It is both Houses of Parliament having to think together about how we best operate in undertaking our responsibilities to hold the Executive to account. That is the proper, effective constitutional role of the two Houses.

If we pursue option 3—a powerful case was made for option 2—there would be all sorts of difficulties. Every Member who said that they are in favour of option 3 also said that there were difficulties. Where are we going to elucidate how we can deal with those difficulties? The only appropriate way to do so is of course in a Joint Committee. If there is to be any revision at all of the way in which the two Houses interrelate, modifying the agreed position set out in the 2006 Joint Committee report, there must be a new Joint Committee to take evidence to make new recommendations.

I hope that the Leader of the House, in responding to this debate, will specifically answer that point. All sides of the House have said that that is the appropriate way forward and it is the one thing on which there is clearly a consensus across the House. I trust that when evidence is given to that committee by, I hope, a “Strathclyde mark 2”, he will be as forthright and as protective of the proper role of your Lordships’ House as he was when he was “Strathclyde mark 1”.

10.07 pm

Lord Hunt of Kings Heath (Lab): My Lords, this has been an excellent debate. I warmly welcome the noble Baroness, Lady Bowles, and, of course, my noble friend Lord Darling, to the House. I congratulate them both on excellent maiden speeches. Right at the start, at about 3.35 pm, the noble Lord, Lord Strathclyde, said that this debate goes to the heart of the work of the Lords as a revising Chamber. Of course, that is true.

Interestingly, as we have developed during today, what has become clear is that, whatever view one has about the conventions, financial privilege and what happened in October, this debate is really about the role of Parliament and the fears that many Lords have expressed about the encroaching approach of the Executive seeking to gain more control over the legislature.

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That is why we have to be wary, at the very least, of giving up our veto on the strength of what, in the noble Lord’s report, are essentially vague possibilities that the Government will reduce their use of statutory instruments or even that the other place might take statutory instruments rather more seriously in the future.

We are, of course, highly indebted to the noble Lord, Lord Strathclyde, for his report and for opening the debate. Clearly, he has a new role ahead as chairman of numerous public inquiries. But he will know that, like my noble friend Lord Grocott, we cannot accept his arguments. We did not break a convention; we did not challenge the primacy of the Commons; there is no constitutional crisis. In October we overwhelmingly declined to support a fatal Motion. Instead, we asked the Government to reconsider and bring forward changes. As the noble Lord, Lord Lisvane, pointed out, the Government had many options for doing that, either through primary or secondary legislation. They chose not to do so. The Chancellor accepted the logic of the Lords’ position, as the noble Lord, Lord Forsyth, pointed out. As my noble friend Lord Haughey said, there was no victory or defeat, just common sense prevailed.

My noble friend Lady Hollis remarked that it was not our vote on tax credits that strained the conventions, but the Government deploying an statutory instrument in the first place to introduce by the back door highly controversial measures affecting millions of people and, essentially, to avoid proper debate in the other place. My noble friend Lord Cunningham put it so well. The resulting fit of pique by the Government is not the basis on which to make far-reaching changes without a careful examination of the long-term consequences.

So we come to the detail of the report by the noble Lord, Lord Strathclyde. For me, the most important part of that report is the last paragraph, on page 23, concerning the appropriate use of statutory instruments as opposed to primary legislation. Many noble Lords expressed worries about the increased use of statutory instruments, in particular the growing use of what are now being called skeletal Bills, backed up by a host of statutory instruments including Henry VIII powers. The noble and learned Lord, Lord Judge, made a most telling contribution. My noble friend Lord Williams spelled this out: 34 Acts since 2010 contained such Henry VIII powers. Let us be frank: the Government of which I was a member was also guilty of that.

In that paragraph, the noble Lord, Lord Strathclyde, said that,

“in order to mitigate against excessive use of the new process”,

which he proposes under option 3, he believed that,

“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”.

It is the most important point he makes in the report. The question I put to the Leader of the House is this: how is that to happen? What guarantees are there for this House were it to give up its veto on secondary legislation? I hear what the noble Lord, Lord Young, said, but in this case warm words are simply not enough.

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We then come to the question of the role of the Commons in dealing with statutory instruments. It has been confirmed by many Members of your Lordships’ House who have come from the other place that the way the Commons deals with statutory instruments is frankly nothing short of disgraceful, with minimal interest, discussion and scrutiny. The Lords has been asked to take an awful lot of things on trust were it to accept the recommendations of the noble Lord, Lord Strathclyde. Will the noble Baroness tell us what guarantees we have that the House of Commons is seriously going to change its ways in dealing with statutory instruments?

I want also to ask her about the details of the noble Lord’s report, in particular his option 3. There have been a number of detailed questions and criticisms of some aspects of that recommendation. My noble friend Lady Hollis raised the importance of a set period of delay. Without such a set period, what on earth would make a Government take notice of anything the Lords said on such an instrument? There are other questions: how will the Executive engage with noble Peers on statutory instruments? How will the view of the Lords be conveyed effectively to the House of Commons? Will the resolution be preceded by debate on the Floor of the House of Commons? How much time would be allowed for it? Would it be more than the five minutes a day on average that currently occurs? Will the matter be subject to deferred Division in the Commons, as is the case with many statutory instruments now? Will statutory instruments continue to be started from both Houses, because that certainly has an impact on whether the House can ask the Commons to think again if the Commons has not thought about something in the first case? Will amendments be allowed? This is a very important question about amendments in relation to statutory instruments. The noble Baroness, Lady Fookes, made an excellent contribution and put forward many excellent ideas in relation to how we might take the scrutiny of statutory instruments forward.

In listening to the debate I sense that most noble Lords on all sides of the House are not opposed to a careful examination of how we might improve the way we scrutinise secondary legislation and of how the relationship between the two Houses might be more carefully effected in the future, alongside a review of what most appropriately constitutes primary legislation as opposed to secondary legislation. However, the House does not wish to give a blank cheque to the Executive or to proceed without fully understanding the long-term implications. It is here that we look to the Leader of the House. She is, of course, a government Minister and is Leader of the Conservative group of Peers in your Lordships’ House. However, as Leader, she has a wider responsibility to guard the House’s interest and to ensure that its role is cherished and enhanced.

Many noble Lords have quoted the Hansard Society paper that we received this morning, and a very good paper it is, too. However, it concluded:

“The complexity of the delegated legislation process, the lack of understanding amongst parliamentarians … all point to a system that is no longer fit for purpose”.

As noble Lords have said, the Hansard Society argues for an “independent expert inquiry” and certainly adds weight to the case for a constitutional convention.

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My noble friend Lord Darling made a persuasive case for that in describing the problems arising from a piecemeal approach to constitutional change.

We are not elected. We are the second Chamber. We accept without question the primacy of the other place. However, we are the only part of Parliament that takes secondary legislation scrutiny seriously. Therefore, in the light of our debate, I hope that the noble Baroness the Leader will tell us what she is now going to do. However rarely it is used, we currently have an unfettered right to veto secondary legislation. I believe that is a safeguard for both Parliament and the public. Does the Leader want to be the person to remove that right and hand yet more power to the Executive? I hope not. I certainly hope that she will listen very carefully to what noble Lords have said before she takes any such precipitous action.

Many noble Lords have suggested that we appoint a Joint Select Committee of both Houses to look at this issue in the round. The work of my noble friend Lord Cunningham is an excellent example of how that might be done. It would also enable us to embrace the very interesting point made by the noble Lord, Lord Crickhowell, about the need to reflect and understand the views of Members of Parliament.

I say to the noble Baroness that this has been a rather remarkable debate. Different views have been expressed, but I think that there is an urge in the House to try to find sensible consensus on the way forward. She would find huge support on all sides of the House if she said tonight that she would agree to the appointment of such a Joint Select Committee of both Houses. Having heard this debate, I am convinced that is the right way forward.

10.19 pm

Baroness Stowell of Beeston: My Lords, I offer sincere thanks to all noble Lords who have taken part in this debate. It is an important part of the process of the Government considering my noble friend’s report. I scheduled this debate today because I wanted to hear from noble Lords. I know that it is a big investment of time to contribute to a debate that starts mid-afternoon and goes on until now, so I am very grateful to everybody who has contributed. I must congratulate the two maiden speakers: the noble Baroness, Lady Bowles of Berkhamsted—I welcome her to your Lordships’ House—and the noble Lord, Lord Darling. I hope he will not misunderstand if I say that I will just call him “Darling” as I do not think that I can pronounce the place in his title where he is from, but he is warmly welcomed. We are very pleased to have both the noble Baroness and the noble Lord among our number.

I am grateful for all the contributions today, I think that they have been interesting, constructive and helpful to me in my consideration of my noble friend Lord Strathclyde’s report. I want to thank my noble friend for doing his review, outlining a clear set of options and, today, setting out very clearly, when he introduced the debate, the route to how we got to where we are and why it is that the Government asked him to carry out that review.

There have, understandably, been a range of views expressed, but one thing that I found pleasing was that we are all united in our desire to uphold this House’s

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very important role as a revising Chamber. What has also been acknowledged in the debate today is that our relationship with the other place is at the heart of how we fulfil that important role. Also, as has been mentioned already, we have acknowledged an understanding that we are here to complement and not compete with the elected House of Commons. The noble Lord, Lord Empey, was right to highlight the risks when we do not properly respect and understand that relationship.

For us to work together effectively with the House of Commons, it is important that there is clarity on how we work together. When it comes to primary legislation, we are clear on how that relationship works; there is a dialogue between the two Houses and a mechanism, through ping-pong, for us to ask the House of Commons to think again, but there is also a way for the will of the elected House to prevail, with the ultimate back-stop of the Parliament Acts when all else fails.

With secondary legislation, the relationship between the two Houses is not structured as clearly. We cannot enter into a dialogue; we may only give or withhold our approval to a statutory instrument. If we choose to withhold approval, there is no mechanism to allow the will of the other place to prevail. That is what gives us this absolute power of veto. Given how significant that power is, it is essential that we have a shared understanding within your Lordships’ House about how it should be used. Yet, right now, we do not. That is a very important point to stress, because several noble Lords have said today that, in October, we asked the House of Commons to think again. We did not do that, because we cannot do that. We do not have that facility. What we did was to overrule the House of Commons, because it had already decided.

Noble Lords: Oh!

Baroness Stowell of Beeston: It had already decided what its view was on the statutory instrument and we do not have that mechanism for a dialogue.

The role of this House and its powers on SIs is not a new issue; this is something that we have heard from many noble Lords speaking today. My noble friend Lord Wakeham, through his royal commission, and other noble Lords have grappled with this issue in the past. Over the past few months, and indeed through today’s debate, what has crystallised, for me, is the fact that there is no clear agreement among us about how we exercise our powers. We are still debating and still disagreeing today about whether the Motions that were tabled in October were fatal or non-fatal. I feel that, for us to be effective, we cannot sustain that lack of agreement between us about how we use our powers.

The noble Lord, Lord Grocott, was the first person that I noted down who said, “It’s not broke so let’s not fix it”, but he was not the only one who made that point; in fact, the noble Lord, Lord Hunt of Kings Heath, said the same. But, as my noble friend Lord Strathclyde and others argued, conventions work only when both sides agree on what they mean in practice. The noble Lord, Lord Grocott, looked back on the submissions made by my noble friend when we were in opposition. I also looked at the submissions made to the Joint Committee on Conventions by the noble

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Lord’s Government when they were in power. Back then, the then Labour Government said in their submission:

“A contested convention is not a convention at all”.

I agree. That is the problem we have at the moment—we are contesting.

For us to fulfil our role effectively, we need clarity, simplicity and certainty—what my noble friend outlined as principles in his report—and we need to ensure that the other place has the decisive say on secondary legislation, just as is the case when we consider Bills. My noble friend’s report gives us the opportunity to consider how we could do things differently and tackle the long-standing questions raised.

Before I talk about some of the options that my noble friend outlined and the responses to some of those that he put forward, I should be clear that the Government are still listening. Tonight I will not offer any government response to what he put forward in his report—the options and the recommendation. In terms of considering the way forward, the Government will take account of this debate, which is why it has been such a valuable exercise. The noble Lord, Lord Foulkes, asked earlier that we should consider, and I am considering what has been argued—I am taking it on board. I have listened carefully to the debate tonight.

Lord Foulkes of Cumnock: I respect what the noble Baroness says, but in her remarks so far she gives no evidence whatever of having taken account of any of the comments made right around the House. Could she make it clear how all the points made—the very good suggestions from every quarter of the House—will be brought together, considered by the Government and dealt with? Will they look at setting up a Joint Committee?

Baroness Stowell of Beeston: I am conscious of time; everybody is tired. I am going to come on to that; I have just said that that is what I am going to come on to, and I will.

Some noble Lords thought that it would be best to proceed without legislation and instead to codify the convention; certainly there is an argument to be made in respect of that, but that approach would require us to restore a shared understanding about the convention underpinning our power of veto. Most noble Lords focused their comments on the third option put forward by my noble friend, the one that he recommends—as he described it, the ping without a pong. He suggests that that would replace this House’s power of veto with a new power to ask the other place to think again, with the House of Commons having the final say.

What he is recommending there is what noble Lords are arguing for. However, some thought that it would be necessary to retain the veto available to us now. I stress again that all these things are under consideration, but it is important for me to point out that we do not have an absolute veto when it comes to primary legislation. The new power that my noble friend suggests would be more in keeping with the role of this House, and the desire it has to ask the other House to think again.

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The noble Baronesses, Lady Taylor and Lady Smith, and the noble Lord, Lord Hunt, and others asked me from the Labour side of the House to consider what was possible that would have some longevity and was not about just advancement for any particular party in government. Again, I found it very helpful to revisit what the Labour Party said to the Joint Committee on Conventions about the veto when they were in power. Forgive me for singling out the noble Lord, Lord Grocott, again but it was he who made this point to the Joint Committee. He said that,

“the House of Lords can veto secondary legislation … the very legitimate question arises … whether it would be sensible to consider the proposition that the Lords in respect of secondary legislation should do what it does with primary legislation, and see its function as being a delaying, revising chamber but not a vetoing chamber. That is really the question that is being put”.

Lord Grocott: My Lords, the noble Baroness will acknowledge that a lot of evidence went to the Joint Committee, which was set up by the Labour Government precisely to look at all these issues. That all-party Joint Committee, although a committee with a Labour majority on it, looked at it and the conclusions that it reached were agreed unanimously and adopted by both Houses. That is the way the process worked and it is the way any new process should work.

Baroness Stowell of Beeston: I say to the noble Lord that the Joint Committee on Conventions of 2006 was clearly highly respected. It was a very significant committee, and its findings and work have really stood the test of time. The problem we have is that the convention that was set out there and reinforced by the Joint Committee—I am afraid that this is the problem, because we disagree and this is what we are having to address—is no longer operating in the way that it was agreed it should operate.

Lord Cunningham of Felling: I am grateful to the noble Baroness, and I apologise again for the state of my voice, but what she says is not correct. The committee was absolutely unanimous in endorsing the conventions. Both she and her noble friend Lord Strathclyde have introduced into the argument just today that somehow one of these conventions is contested. That is just not true. The conventions have been upheld and adhered to, and on 26 October no convention was broken.

Baroness Stowell of Beeston: I am going to move on, to make some progress. I do not disagree with what the noble Lord says about his committee of 2006. I do not want to dwell so much on October—I want us to look forward—but I am saying this about the events of October. It is all very well for the noble Baroness opposite to groan but, by agreeing to those Motions last October, this House said that it would decline to consider something until a set of demands had been met by the Government. That is what it voted for, and that had never happened before. That is why I assert that that kind of arrangement means that the convention as it exists, for this part of the agreement, is now difficult. That is the problem. Let me move on.

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Baroness Hayman: I really do not understand the noble Baroness’s logic. Is she saying that if the House had accepted the amendment of the noble Baroness, Lady Manzoor, it would not have broken the convention but that because it found a way of doing something lesser, which did not destroy the SI, we did breach the convention? That seems to be the logic of her argument.

Baroness Stowell of Beeston: My precise point, which my noble friend made when he introduced today’s debate, is that, in practice, this House voted for something that had a fatal effect, and it is therefore no longer possible for us to say that our understanding of how that convention works continues. I shall give way one further time to the noble Lord and then I really would like to move on.

Lord Cunningham of Felling: I am grateful to the noble Baroness for giving way again, but she just again said something that is simply not correct. She said, in respect of the Division on 26 October, that something like that had not happened before. That is simply not correct. Between 1968 and 2005, there were five such Motions, three against a Labour Government, which were carried in this House, so it has happened before.

Baroness Stowell of Beeston: Okay, I am just going to make one simple point and then I really will move on. We are disagreeing because what happened previously were fatal Motions that we all understood to be fatal. On the Motions tabled in October, one side of this House is arguing that they were not fatal, the other side is arguing that they were. I am afraid that that disagreement is what has led us to have to ask my noble friend Lord Strathclyde to look at this issue and come forward with his report. He is trying to bring forward something which addresses the need of this House that has been outlined since 2000, when my noble friend Lord Wakeham first looked at this matter.

This House is influential when we act in a constructive and nonpartisan way. We do not need vetoes. The impact and effect that we have on legislation is very powerful, and we continue to have a very important role in our effect on the decisions that the Government make in legislation.

Many noble Lords said that this House should give up a veto only if there was some kind of trade-off for the Government to review how they use secondary legislation. This is a very important point. The speeches from the noble and learned Lord, Lord Judge, and my noble friend Lady Fookes were very powerful and they make a really important point. I said the same to the noble Lord, Lord Richard, when I delivered the Statement before Christmas. I am grateful to the noble and learned Lord and the noble Lord, Lord Hunt, for acknowledging that any criticism that Parliament may have of Governments for the use of secondary legislation is not new.

I also say to the House that I do not think that things are quite as bad as the House suggests in terms of our approach to secondary legislation—I do not just mean the Government, I mean the House as a

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whole. There is always room for improvement, but the number of SIs over the past 20 years has been pretty steady.

The committees of this House are very powerful and respected. The committee chaired by my noble friend Lady Fookes does a very good job of scrutinising delegated powers in primary legislation. Very often, the Government respond constructively to its recommendations. In the work that this House does on primary legislation, a lot of the changes that it makes are around the powers. My noble friend Lady Fookes has put forward some good arguments and ideas about how we can improve within government, and I will certainly take those away.

We should not forget that when SIs come into Parliament they are scrutinised by a Joint Committee of both Houses, as well as by the Secondary Legislation Scrutiny Committee chaired by my noble friend Lord Trefgarne. The tax credit SIs went through that JCSI, which is chaired by a Labour Member of the other place. In its report, the JCSI did not raise any questions or concerns about that tax credit SI.

Some have argued for a period of delay. Some have argued that it would be essential for us to ensure that we would introduce debates for the House of Commons when it considers secondary legislation. What is important, interesting and helpful to me is that, although there are different views being expressed today about how to operate without a veto, there are many noble Lords at least discussing the idea of not having a veto but having a new power instead of the veto. I am grateful to noble Lords for that response.

As I draw to a close, noble Lords have raised questions about a Joint Committee. I have already said that the work of the Joint Committee in 2006 was incredibly powerful, but I do not believe that right now we need another Joint Committee. We need to look at the options that have been put forward by my noble friend, but I know that my noble friend Lord Trefgarne and his committee have committed to looking at what has been proposed, and I am grateful to him.

As for the Commons looking at this, it is clearly for the other place to decide how it should scrutinise secondary legislation. However, as my noble friend Lord Crickhowell has identified, the Public Administration and Constitutional Affairs Select Committee in the other place has committed to look at what has been put forward by my noble friend Lord Strathclyde. It has a hearing next week at which he is giving evidence, so the Commons is also getting on with its consideration of this arrangement.

Lord Tyler: If the Leader of the House is dismissing out of hand the idea of a Joint Committee, how can she guarantee that the two Houses will think about this problem together? Members on all sides of the House have said how essential this is. How will she ensure that that happens?

Baroness Stowell of Beeston: The point is to make sure that the House of Commons has the final say on secondary legislation. It has set out how it wishes to consider what has been put forward by my noble

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friend. He has put forward his options after extensive consultation with Members of the other place, as well as with Members of your Lordships’ House.

There is clearly much for me to reflect on from this debate. I will do so with my colleagues in government. I am sincere when I say that the contributions have been very valuable. We have not come to any conclusions in government.

Lord Foulkes of Cumnock: The noble Baroness has said that she has not come to any conclusion, yet she has said that she is not going forward with a Joint Committee. How are the Government going forward? A lot of good suggestions have been made in this House. If we are not to waste the whole day that we have spent on this, she must indicate to the House how the Government will take this forward.

Baroness Stowell of Beeston: I have said what we are doing. We will reflect on the very important points that have been made today. My noble friend Lord Trefgarne and his committee will be looking at what has been put forward. There may be other committees of your Lordships’ House that wish to do so as well. We will be considering this in the period ahead; at an appropriate point we will consider which is the best way forward, and I will return to your Lordships’ House.

My noble friend has done a comprehensive piece of work. As my noble friend Lord Wakeham said, what is in my noble friend’s report is very similar to what was in the report of his commission 16 years ago. Many noble Lords have pointed to that as a way forward. I am not reaching any conclusion tonight on the right way forward, but my noble friend Lord Wakeham’s point is very important and it is worth us all dwelling on it.

10.45 pm

Lord Strathclyde: My Lords, what is so refreshing about the debate we have had today is that we have been discussing what we are here to do, what we are for and what the House of Lords is for. What a contrast that is with the years we spent discussing how to get here. At last we are discussing what we have to do in practice.

I shall make two short points. First, for me the most significant and interesting contribution was from the noble and learned Lord, Lord Judge, which showed what a good thing it is to have properly qualified senior former members of the judiciary here—with due deference also to the noble and learned Lord, Lord Hope of Craighead—and how wrong we were to throw out the Law Lords all those years ago.

Secondly, and perhaps more substantively, there has been an enormously wide range of views expressed in the debate. I wish the Government the best of luck in trying to bring all this together and come out with a coherent response. It will be difficult.

My noble friend Lord Young of Cookham heard something that I also heard. Although there were numerous disagreements, if we are going to change the way we debate this, the key area of disagreement is

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whether it should be by legislation or by agreement. I urge all those who are in favour of doing it by agreement to work within the House and with the Opposition and the Government to see if that agreement would work.

The noble Lord, Lord Cunningham, misunderstood what I wrote in my report—it is my fault because it was not clear. In my foreword, I talked about conventions,

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but conventions cannot be imposed by me, by the Government or by the Opposition. They can be reached only by agreement, by good will, by compromise and by joint objective. If that is the result we end up with, I will be the first to cheer.

Motion agreed.

House adjourned at 10.47 pm.