1.Since 23 March 2020, Standing Order 10 (6), which states that by-elections for hereditary peers must be held within three months of a vacancy occurring, has been suspended by the House through a series of decisions, most recently on 14 December 2020.1 The motion the House then agreed further suspended by-elections pending a further report from this Committee. At the time of writing, there are four outstanding by-elections.
2.As in the House, a range of views are held in the Committee about what constitutes an appropriate point to resume by-elections, given the continuing and unpredictable impact of the COVID-19 pandemic. However, on balance, we are agreed that, in line with our previous recommendations, the House should be invited further to suspend Standing Order 10 (6). In making this recommendation, we note that it would be technically possible to proceed with the by-elections, should they be carried out using electronic means. But the sense of the Committee is that it would be difficult to conduct the by-elections in a satisfactory way in this manner, in particular that it is unsatisfactory to restrict hustings to a virtual form when candidates largely unknown to the electorate might be at a disadvantage.
3.In recommending a further suspension of the Standing Order we are also mindful of the legal position, something which was raised by a number of members in the debate on 14 December. We are clear that the House of Lords Act 1999 requires by-elections as a matter of law; any suspension is temporary and a response to the ongoing national pandemic. The impact of the pandemic on the timing of the resumption of by-elections should continue to be subject to regular review and decision by the Committee and the House, to ensure that the suspension remains proportionate and necessary to reflect the circumstances of the pandemic. Therefore we again recommend only a short further suspension, until after Easter 2021, at which point the position should be reviewed again. We accordingly recommend that Standing Order 10 (6) be further suspended pending a further review by this Committee after the Easter Recess.
4.The Leader of the House, in a letter dated 11 January 2021, requested that the terms of reference of the Secondary Legislation Scrutiny Committee (SLSC) should be extended to include a new “sifting” function in relation to proposed negative instruments laid under section 31 of, and Schedule 5 to, the European Union (Future Relationship) Act 2020 (“the 2020 Act”). This sifting function is time-limited to two years from Implementation Period (IP) completion day and will therefore expire on 31 December 2022. The new function will be additional to the “sifting” function currently undertaken by the SLSC in relation to proposed negative instruments laid under sections 8 and 23(1) of the European Union (Withdrawal) Act 2018 (“the 2018 Act”). Regulations may be made under section 8 for two years from IP completion day and under section 23(1) for 10 years from IP completion day. The Leader’s letter is at Appendix A.
5.In considering the Leader’s letter, the Committee also took the opportunity to suggest three tidying up amendments to the SLSC’s terms of reference, thereby deleting paragraphs (2) and (4) (c), and removing unnecessary wording concerning the point at which the SLSC’s power to appoint sub-committees lapses. The House is invited to agree to the updated terms of reference in Appendix A.
6.Under Standing Order 72, proposed negative instruments laid under the 2018 Act can be laid during a recess. We therefore propose that Standing Order 72 should be amended so that it extends to proposed negative instruments laid under the 2020 Act. The proposed revision to Standing Order 72 is included in the draft updated Standing Orders.2
7.The Committee has considered the use of parliamentary privilege to reveal confidential information that is subject to a court order. It is important that members understand the responsibility that comes with parliamentary privilege and that in exercising their undoubted right to free speech in Parliament they do not set themselves in conflict with the courts or seek to supplant them. While there is clear guidance available for members wishing to raise issues that are sub judice there is not such clear guidance for members proposing to raise issues subject to court orders and injunctions. We therefore recommend the following text be added to the Companion to Standing Orders:
“4.66A Members should also respect United Kingdom court orders which are no longer sub judice and should be careful that in exercising their undoubted right to free speech in Parliament they have due regard to the relationship between Parliament and the courts. The Clerks are available to give advice. Members should also bear in mind their personal responsibility to respect the provisions of primary legislation.”
We have also agreed to raise awareness of this new guidance through articles in member newsletters, the content of member training materials and procedural guides.
8.The House of Lords Reform Act 2014 provides that a member who does not attend the House during a session of six months or longer ceases to be a member of the House at the beginning of the following session upon certification of the same by the Lord Speaker. The provision does not apply to those on leave of absence for the whole or part of the session in question or to members who were suspended or disqualified from sitting or voting for the whole of the session in question.
The Act defines members of the House as follows:
“For the purposes of this Act a person is a member of the House of Lords if the person is entitled to receive writs of summons to attend that House.”
9.There is therefore a risk that new members who receive their writs towards the end of a session and who are not introduced before the end of the session could therefore be caught and accordingly cease to be members at the start of the next session. This specific issue was not considered during the passage of the Act through either House. However, section 2(3)(b) of the Act states that the non-attendance provision does not apply to a member if the House resolves that it should not “by reason of special circumstances”. We believe that the situation of new members who have not, for any reason, been introduced, falls within the ‘special circumstances’ envisaged by the Act. We therefore recommend that the House agrees to resolve that the provisions of section 2(1) of the House of Lords Reform Act 2014 do not apply to members who have not been introduced.
10.The Committee has agreed an updated version of the Standing Orders relating to Public Business. The draft text of the new edition is available on the Committee’s website.3 The changes made mainly give effect to changes already agreed by the House, but we have also taken the opportunity to make drafting changes. The House is invited to agree the revised Standing Orders relating to Public Business.
1 The initial suspension of the Standing Order was on 23 March 2020 until 8 September; on 8 September it was further suspended until 31 December; and on 14 December it was further suspended until after this report from the Committee could be considered.