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Baroness Stowell of Beeston
That the debate on the motion in the name of Lord Turnberg set down for today shall be limited to 3 hours and that in the name of Lord Campbell-Savours to 2 hours.
Strathclyde Review
Baroness Stowell of Beeston Excerpts(10 years, 1 month ago)
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Baroness Hollis of Heigham
It is an advisory time and I am coming to the end.
I would not expect a delay Motion to happen very often—perhaps six times a year—but the fact that it might would transform the value of our scrutiny; it would transform the care with which departments bring SIs to this House. The Lords would be doing exactly what it should by asking the Government and the other place to think again and then respecting their decision, as we should, when they have done so. So I hope that we can move down that path but with appropriate specified delay periods.
The Lord Privy Seal (Baroness Stowell of Beeston) (Con)
My Lords, perhaps I may interrupt before the next noble Lord rises to speak and add to the comment of my noble friend. We put in the guidance time because we know that the House will wish to rise at around 10 pm. We can do that only if everybody respects the speaking time. So I urge noble Lords to co-operate. When I get to my bit at the end I shall try to be brief but I know that the House will also want me to be fulsome in my reply.
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. 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 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.
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 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.
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.
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 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 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.
Tourism
Baroness Stowell of Beeston Excerpts(10 years, 1 month ago)
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The Lord Privy Seal (Baroness Stowell of Beeston) (Con)
My Lords, at the start of Questions there is no official line to say who is next. I urge that one noble Lord give way to the other.
Lord Harrison
My Lords, given that tourism is an important economic industry, rather than fiddling around with existing successful structures, would the Government not be better advised to place tourism under the aegis of BIS or, at the very least, to include it in the title of the department where it currently finds itself, that of Culture, Media and Sport? Why not add tourism to the title to give it the energy that is required to treat it seriously?
House of Lords: Strathclyde Review
Baroness Stowell of Beeston Excerpts(10 years, 1 month ago)
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The Lord Privy Seal (Baroness Stowell of Beeston) (Con)
My Lords, with the leave of the House, I would like to make a Statement on the review of my noble friend Lord Strathclyde on secondary legislation and the primacy of the House of Commons.
On behalf of my right honourable friend the Prime Minister, who commissioned the review, I pay tribute to the noble Lord, Lord Strathclyde, and to the expert panel who assisted him. Before coming on to the review itself, it is perhaps worth rehearsing briefly the circumstances in which it was commissioned.
We have a clear purpose in this House as a revising Chamber, and in so doing, we complement the work of the other place. When we consider primary legislation, the conversation between the two Houses is clear. We can ask the House of Commons to think again through the process of ping-pong, but ultimately the will of the elected House can prevail, with the Parliament Acts available as a backstop.
Secondary legislation works differently. This House can only give or withhold its approval and there is no dialogue. If your Lordships’ House refuses to give its consent, the whole process grinds to a halt. It means that, unlike on primary legislation, we are able to exercise a veto, a very significant power, and so by convention we have exercised that power only in exceptional circumstances, doing so on only five occasions since the Second World War.
So withholding agreement to a statutory instrument is rare enough. To take that step on a Budget measure, as we did in October, was unprecedented, and to do that on a Motion where different sides of the House still disagreed as to its effect took us into uncharted territory. Yet only a day after the House exercised its veto, it was invited to do so all over again in respect of an order made under the Electoral Registration and Administration Act 2013. What had happened previously on two occasions in 13 years very nearly happened twice in two days. The exceptional was becoming a little less rare.
These events put a long-established convention in doubt and raise constitutional questions about the primacy of the elected House which needed to be examined. My noble friend was asked to examine whether there is a better way to handle secondary legislation in order that the elected House of Commons could have the decisive say, just as it does on primary legislation. My noble friend did that in his customary way, with careful thought and extensive consultation with parliamentarians in both Houses from across the political spectrum. The result is a considered report with three aims in mind: to provide clarity, simplicity and certainty in the passage of secondary legislation.
My noble friend outlines three options as to how the other place can be given the decisive say. Option 1 would remove the House of Lords from the statutory instrument procedure altogether, as already happens in respect of some categories of SIs. Option 2 would retain the present role of this House in relation to secondary legislation, but seek to codify the convention that has been put in doubt by clarifying the restrictions on how the House’s powers to withhold approval or to annul should be exercised, whether by resolution or changes to our Standing Orders. The third option would create a new procedure in statute. It is a compromise option that in exchange for removing the power of veto would give this House a new power to ask the House of Commons to think again. But the other place would have the final say, allowing it to insist on its primacy and override a rejection by the House of Lords.
My noble friend Lord Strathclyde, in submitting his review to the Prime Minister, has clearly recommended the third compromise solution as the way forward. I should add that he has recommended that the Government, with the involvement of the House of Commons Procedure Committee, should review the circumstances in which statutory instrument powers should be subject to already existing Commons-only procedures, and he recommends that the Government should ensure that both primary and secondary legislation are used appropriately.
My noble friend’s report is thoughtful and measured, and deserves proper consideration by the Government before we respond fully. That is what we intend to do. Of course, noble Lords will have views as to the best way forward. We want to listen properly to those views, and to those of Members of the other place, as we decide on our preferred approach. That begins today with this Statement and it will continue with a full debate on my noble friend’s report in the new year before the Government respond in full.
As we consider the way forward, it is important that we do so with those aims of clarity, simplicity and certainty in mind. All Governments require and indeed benefit from a strong Parliament holding them to account and providing scrutiny and, as my noble friend’s report highlights, the House of Lords has long played its scrutiny role very effectively. But in providing that scrutiny and challenge, it should be the elected House that has the decisive say on secondary as well as on primary legislation. It is by ensuring that balance that we can complement the other place and best serve the core purpose for which we are here.
I commend the Statement to the House.
Lord Dholakia (LD)
My Lords, I add my thanks to the Leader of the House for making the Statement and giving us advance sight of the report from the noble Lord, Lord Strathclyde. I also add my thanks to the noble Lord, Lord Strathclyde, and his team. The noble Lord promised the report before Christmas and he has delivered.
My party believes that both Houses should be examining better ways to work together to achieve more comprehensive, more informed and more effective scrutiny of government legislation and the actions of the Executive. We continue to reject the notion that any Government achieving a majority in the Commons should have the absolute power to prosecute their business without the burden of proper checks and balances, particularly as voter turnout declines and Governments are elected by a smaller and smaller share of the vote. We believe that a second Chamber, however it is constituted, should not be a mere echo of the House of Commons. We are interested in ways to strengthen the role of Parliament as a whole, not to convert the House of Lords from a revising Chamber to an impotent debating society.
We firmly believe that there is a strong case for enhanced parliamentary scrutiny of secondary legislation. This is particularly important when the primary legislation introduced by the Government is a skeleton Bill, with the statutory instruments flowing from it containing provisions which are more suitable for primary legislation. Already in this Parliament, the Government have introduced two such bills: the Childcare Bill and the Cities and Local Government Devolution Bill. If Governments make increasing use of skeleton Bills, it stands to reason that the SIs stemming from them should be afforded much closer scrutiny.
To that end, my party submitted formal evidence to the noble Lord, Lord Strathclyde, suggesting two different mechanisms by which this House could propose amendments to statutory instruments. We firmly believe that such a mechanism would allow the House of Commons to think again and would, in fact, reduce the incidence of this House withholding its approval of a statutory instrument—which, incidentally, has occurred only six times in the last 50 years. We do not believe that this House should be required to give up its power of veto, when this is such a rare occurrence. To do so would change the arrangements agreed by both Houses following the report of the Joint Committee on Conventions in 2006.
Does the Leader of the House agree that this is not simply a matter for the Prime Minister and the Government, but for Parliament? As there are wider implications, not least for the Parliament Acts, does she recognise that a simple amendment to the Statutory Instruments Act 1946 is clearly not sufficient to deal with this important issue? Does she agree that the proper way to proceed would be to reconstitute a Joint Committee of both Houses to ensure that the matter is fully debated?
We will have a further opportunity to discuss this issue and we will certainly have more to say at that time.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Baroness and the noble Lord for not rushing to their own conclusions on the report of my noble friend Lord Strathclyde, which was published today. I was encouraged by what the noble Baroness, Lady Smith, said about how she and the Opposition are very much interested in change that helps this House fulfil its purpose, because that is what I am interested in, too. This House has a very important role in the legislative process and in Parliament. We are here to scrutinise, challenge and hold the Government to account, and I say that as a member of the Government. I know that that is what this House is here to do, and I want it to be very effective at doing all those things. I want its purpose to be fulfilled properly.
Where I differ from the noble Baroness is about what happened in October. That is the problem. We are now confused as a House. We do not quite know how to deal with secondary legislation because the procedures that we have before us have become confusing. We have this massive power of veto and we have a convention which says that we should not use that veto except in exceptional circumstances.
Baroness Stowell of Beeston
Absolutely, my Lords, we should use it in exceptional circumstances. However, back in October, a new process was introduced concerning how this House exercised its veto. We have debated in this Chamber whether the amendments were fatal or non-fatal. We exercised that veto on something that related to taxation and spending; we have never done that before. That was unprecedented.
As a House, we need to look at—what my noble friend Lord Strathclyde was asked to look at—how we could provide certainty and clarity so that we carry out our role of scrutinising and challenging the Government more effectively and remove this confusion. He has set out in his report three options and has recommended one. His recommendation is, if you like, a compromise solution. It means that instead of that theoretical power, which we do not use very often, the House will have a new power to ask the House of Commons to think again. That was what a lot of noble Lords had been asking for recently, after the events of October. I urge the House to consider very carefully what is in my noble friend’s report. He has canvassed widely in this House and the other place and has come forward with a set of proposals and one that he is recommending. It merits our strong consideration before we rush to any decision.
The noble Baroness, Lady Smith of Basildon, asked me some questions. She asked specifically when the Government will respond. We will do so in the new year, as I said, but we will not do so until we have had a substantial debate. We can discuss in more detail the contents of my noble friend’s report.
The noble Baroness made reference to the use of secondary legislation. My noble friend’s report does not say that this Government, or previous Governments, have been using secondary legislation more than in the past. The graph in his report shows that the use of secondary legislation has been quite consistent over about 20 years.
The noble Baroness asked whether we would be consulting further. Clearly, we are listening; I want to hear from noble Lords today and we will again hear what noble Lords have to say in the debate in the new year.
The noble Lord, Lord Dholakia, mentioned that he and his party do not want to give up the veto of this House. He suggested that there should be a Joint Committee to look at this matter. He referred to the Joint Committee on Conventions, which the noble Lord, Lord Cunningham of Felling, chaired back in 2006. There was a convention in this House—the Joint Committee reviewed it when it did that important work in 2006—but, regrettably, that convention has now broken.
Baroness Stowell of Beeston
We are now looking for a way forward that provides that certainty and clarity, and I hope very much that we will be able to achieve that soon.
Lord Taylor of Holbeach (Con)
My Lords, we now have a period for Back-Bench questions and I hope that noble Lords will recognise that there is a lot of interest in this matter. As my noble friend said, there will be an extensive debate on this early in January, when noble Lords will be able to make their comments. It would be helpful if this period were used for brief questions, so that the maximum number of people can participate.
Lord Butler of Brockwell (CB)
My Lords, will the Leader agree with me that, for many years now, there has been dissatisfaction in all parts of the House with the binary choice that is open to us for either accepting or rejecting statutory instruments? Will she also agree that it is relevant that the procedure recommended by the noble Lord, Lord Strathclyde, is very similar to that which was recommended by the all-party royal commission under the noble Lord, Lord Wakeham, by the Leader’s Group in 2011 and by the Hansard Society and others? It would therefore be unfortunate if the circumstances in which this issue has arisen were to close people’s minds to positive consideration of the procedure that the noble Lord, Lord Strathclyde, has recommended.
Baroness Stowell of Beeston
I am hugely grateful to the noble Lord for that very important contribution. My noble friend has drawn on some of the extensive work done over the past decade or more by the commission chaired by my noble friend Lord Wakeham. The noble Lord, Lord Butler, is right; my noble friend Lord Strathclyde has come forward with a recommendation that deserves proper consideration, and I really hope that that is what this House will give it.
Lord Wakeham (Con)
The noble Lord, Lord Butler, has pointed out that we recommended something like my noble friend Lord Strathclyde’s third consideration. I was on the Opposition Benches at the time of the report, if I recall rightly. We made that recommendation because we wanted a better way for this House to discuss statutory legislation. It was deliberately designed to do that and, from talking around the House, I know that a lot of people believe that such a proposal is right. While I understand that Front-Benchers have their role in these matters, there is a great deal more support in this House for a proposal of this sort; my noble friend Lady Stowell can take comfort from that. I hope that she will consult widely with people before we finally reach a decision.
Baroness Stowell of Beeston
I am grateful to my noble friend for his remarks, and I very much take on board his advice about my approach over the next few weeks.
Lord Grocott (Lab)
As something of an expert—if I may modestly say so—on government defeats in the House of Lords, can I put it to the Leader of the House that this is no way to effect a substantial constitutional change that would strengthen Government in relation to Parliament, and fundamentally affect the relationship between the two Houses?
The Leader of the House refers constantly to the events in October. They were bizarre. A Government propose a reduction in the income of people in the lowest-paid families. The House of Lords says, “We think you should think again about this”. The Government say—amazingly—“We are thinking again, and we’ve decided that we agree with the House of Lords”. Yet the Government persist in what can be seen only as a malevolent way to set up a committee like this to cut the wings of the House of Lords.
This is a significant suggestion to the Government, I hope: if you want to effect change of this sort, do it in the proper, conventional way. That is by proper scrutiny—for which we have the 2006 example readily to hand; it came to conclusions not helpful to the Government, I may say—putting to both Houses the proposal of the Joint Committee of senior Members of both Houses, and then for the Houses themselves to decide whether they want to go ahead with this substantial change. A government-inspired report with no witnesses listed, no evidence taken in public, no calls for evidence in a way that we can understand—this is no way to effect constitutional change.
Baroness Stowell of Beeston
My Lords, I have huge respect for the noble Lord, Lord Grocott, and I listen carefully to what he says. The key thing that I am trying to identify in my remarks today is that we are in disagreement about what happened in October. That is what I find regrettable. It means that the important convention, which stood the test of time for so long, has been broken. He refers to the Joint Committee of 2006, which predates my time in the House but I understand from all my reading and research how important and respected it was. That committee reinforced the convention, but the convention that it reinforced has now broken. So what we have done is come forward with something which offers that clarity and simplicity. It draws heavily on previous work that has been done by other groups, such as my noble friend Lord Wakeham’s distinguished royal commission. The noble Lord, Lord Strathclyde, has come forward with a proposal and all I ask at the moment is that the House considers it—as indeed we in government are considering it.
Lord McNally (LD)
My Lords, I sat on the Cunningham committee and I remember the background to it being set up, which was the irritation of the then Labour Government at the behaviour of the House of Lords. The phrase then used was that part of the intention was to clip the wings of the House of Lords. The truth is that Governments do get irritated by this House. I think that I may have expressed the odd irritation myself occasionally from the Dispatch Box. But where the noble Baroness is misleading herself is that the convention laid down by the Cunningham committee has not broken down, because in that convention it very carefully and clearly states that the House of Lords must retain the right to say no. That was a red line for me. The reason for it was that put by my noble friend Lord Dholakia: that without retaining the right to say no, used sparingly, carefully and rarely, we become a debating society.
The noble Baroness has been a very good Leader of this House but I urge her to recognise that the Leader has those responsibilities, beyond government, to lead this House in a way that protects its powers. We must let go of that right to say no only with very strong arguments to do so. They have not been made today. Go back to a Joint Committee of both Houses, and perhaps even consider the fourth option: that statutory instruments could be amended by this House. That would be a way forward.
Baroness Stowell of Beeston
I have huge respect for the noble Lord, Lord McNally, and enjoyed working alongside him in government. I understand how seriously he takes these matters but I am afraid that I also disagree with his description of what happened back in October. In considering that piece of secondary legislation, we did two things: we overruled the House of Commons on a matter of taxation and finance, and we used a type of amendment to a Motion that has never been used before. That is referred to in my noble friend Lord Strathclyde’s report.
The point about the power of veto is that we should retain it if we retain our convention not to use it except in very exceptional circumstances. What I am arguing is that we are no longer clear what those circumstances are and by what kind of method we would use that veto. So I am afraid that I feel that we need to be able to reach some agreement and come up with a convention with which we all agree. We have to understand that conventions require all parties to agree. At the moment, I am afraid that we do not agree.
Baroness Meacher (CB)
My Lords, I applaud the noble Lord, Lord Strathclyde, for his report, and in particular the recommendation in his third proposal, which could be a useful way forward. I also support strongly the words of the noble Lord, Lord Butler. But the noble Baroness, Lady Stowell, repeatedly refers to confusion: she says that we have a disagreement, that we have broken a convention, and so on. I remind the House that on the tax credits issue, we did indeed have a very exceptional set of circumstances. The Chancellor of the Exchequer used a statutory instrument—regulations—to introduce £4.4 billion of cuts affecting very large numbers of extremely poor people across the country. The second aspect of this completely exceptional situation was that we in this House knew that the Government no longer had the support of the elected House of Commons on the issue, now that Conservative Back-Benchers understood the enormity of what the Chancellor of the Exchequer was attempting to do.
Could the Leader of the House agree that this House acts in the way that we did on that occasion only in completely exceptional circumstances? Can she therefore honour this House with a recognition that the House acts very properly and, indeed, acted properly on that occasion in offering the Government an opportunity to listen to the elected House?
Baroness Stowell of Beeston
Like the noble Baroness, and as I have already said, I feel very strongly and care passionately about this House having the right to scrutinise and challenge the Government and to do what it is here to do as far as primary and secondary legislation, and policy more generally, are concerned. I welcome what she said about my noble friend’s report.
However, by her contribution she has also illustrated what I am trying to say to the House. I do not want to debate the substance of the policy, because we are talking now about procedures. Back in October, the noble Baroness was at pains to tell the House that her amendment was not a fatal Motion but that it would allow the Government to think again. But it was never established in fact that what she was doing did not amount to a fatal Motion—we were in disagreement about it. There is no definition of these things in the Companion. We have a choice: we either withhold our consent or we give our consent. It was not possible for this House, using the method that the noble Baroness chose, to ask the Government or the House of Commons to think again, because we do not have that facility. We either approve or we do not.
If the noble Baroness is arguing for this House to be able to ask the House of Commons to think again, my noble friend Lord Strathclyde, in his paper, is suggesting a way which would provide the very thing that the noble Baroness is arguing for today and argued for back in October.
Lord Cormack
My Lords, I am most grateful. I am sure we are all grateful to my noble friend for what she has said, but I would ask her two things. First, it is right that we should have a full and extensive debate. However, as this report has been produced on the eve of the Christmas Recess, can we have a week or two after we come back where we can talk together informally, across the House, and then have a well-informed debate? Secondly, can that debate be informed by the fact that it is the Government who are answerable to Parliament—not the other way round—and by the fact that we are in this mess largely because of the appallingly inefficient way in which the other place deals with secondary legislation? It is therefore crucial—I ask my noble friend to talk to her colleagues in Cabinet about this—that the other place also debates this matter in detail, so that we have a more satisfactory balance in the way both Houses look at secondary legislation.
Baroness Stowell of Beeston
As my noble friend may not have had an opportunity to study my noble friend Lord Strathclyde’s report, he might not yet have spotted that it includes a reference to the other place and its role in secondary legislation. My right honourable friend the Leader of the House of Commons is also making a Statement today in the other place about this same topic.
As for when we will schedule the debate in January, clearly we will have to consider the timetabling of it alongside other matters when we return. However, my main commitment to this House is that there will be a substantial debate; it will be in government time; and we will do so early in the new year.
Lord Richard
My Lords, will the Government kindly recognise, if they have not already, that a balance has to be struck between the existing powers of this House and the way in which government carries out its business? There is a good case for this House giving up its veto—I accept that—but there is an undoubted quid pro quo that has to be demanded for it, which is that the Government stop playing games with statutory legislation. The reason why we got into this mess in October was because, on a major issue of government policy, not just a minor financial issue, they chose to do it by statutory instrument rather than by primary legislation. There has to be a recognition on both sides in this argument that, if this House is asked to give up a power that it has got but very rarely exercises, the Government and the other place must recognise that in matters that are proper for primary legislation that is how they should do it. I am fortified in that by remarks made by the noble Lord, Lord Lisvane, when this matter was last raised in this House. If the Government can give that sort of assurance that they will not have these wheezes and play the silly games that they have been playing, I am sure we can make progress.
Baroness Stowell of Beeston
The noble Lord, Lord Richard, makes an important point about the use of the proper legislative vehicle. I agree with him on that, and it is referred to by the noble Lord, Lord Strathclyde, in his report as a recommendation as well—and that is why I refer to it in my Statement, because it is important that we acknowledge that as well as his other proposals on the powers of this House. I am not sure that I agree with the noble Lord’s description of what is happening in the use of secondary legislation by this Government or, indeed, other Governments, but I accept the argument that he makes, and I accept that we have to be constant and vigilant to make sure that we always choose the right vehicle when we bring our measures to Parliament.
Baroness Hayman
My Lords, I have long supported improving Parliament’s scrutiny of statutory instruments. In that spirit, I say to the Leader of the House that this is certainly a useful report and we should give it proper scrutiny. I have to say also that that proper scrutiny will not be enhanced by the constant repetition of the idea that the convention was somehow broken. It will not be enhanced by suggesting that the tax credit scheme was killed off by this House, when it was killed off by the Chancellor of the Exchequer after this House gave him the opportunity to think again. It is important that we do not allow a mythology to grow around this issue.
Would the Leader of the House agree that, if this House is asked to give up the power to negate in favour of a power to delay, it has to be in circumstances that that delay can be effective, as it was effective in this case? Therefore, there has to be adequate time for the House of Commons to re-examine. Furthermore, the Government have to take into account what the noble Lord, Lord Strathclyde, said, 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”—
as it was in that case—
“left for implementation by statutory instrument”.
Baroness Stowell of Beeston
I do not want to rehearse again the events of October. When the noble Baroness has had an opportunity to study the report carefully, she will see that it refers to delay. My noble friend Lord Strathclyde recommends Option 3, and in it he sets out his argument about why delay should not feature as part of his recommendation. That will be something which we will no doubt debate further when we have the debate in January, which I have already committed to.
Channel 4
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The Lord Privy Seal (Baroness Stowell of Beeston) (Con)
My Lords, on this occasion I think the House would like to hear from the noble Baroness, Lady Bonham-Carter.
Business of the House
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Baroness Stowell of Beeston
That the debates on the motions in the names of Lord Howarth of Newport and Baroness Wheeler set down for today shall each be limited to two and a half hours.
Flooding: Cumbria
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The Lord Privy Seal (Baroness Stowell of Beeston) (Con)
I am sorry but I think we should go to the Bishop.
The Lord Bishop of Leeds
My Lords, what cognisance is taken by the Government of the stochastic modelling performed by the insurance industry and how many one-in-100-years events it takes for something to cease to be a one-in-100-years event?
Business of the House
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Baroness Stowell of Beeston
That the debate on the Motion in the name of Lord Carrington of Fulham set down for today shall be limited to 2 hours and that in the name of Earl Attlee to 3 hours.
House of Lords: Strathclyde Review
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Lord Hunt of Kings Heath
To ask Her Majesty’s Government, further to the comments made by Baroness Chisholm of Owlpen on 3 November (HL Deb, col. 1516), how Lord Strathclyde and his review team will take account of the views of Members of the House of Lords.
The Lord Privy Seal (Baroness Stowell of Beeston) (Con)
My Lords, my noble friend Lord Strathclyde has written to the Members of both Houses inviting them to submit their views. A number of Peers from around the House have already made submissions to his review or shared their views with him in person. I have no doubt that he will consider carefully all representations from Members of this House.
Lord Hunt of Kings Heath (Lab)
My Lords, I am grateful to the Leader for that reply. Can she assure me that, when the noble Lord, Lord Strathclyde, has reported, there will be an opportunity for the House to debate the contents of the report before the Government come to any conclusions? Can she also say whether, in view of the 1994 resolution of this House that we have an unfettered right to vote on secondary legislation, which was confirmed by the Joint Select Committee on Conventions, if the noble Lord proposes reducing the powers of this House, she will ensure that a further Joint Select Committee of both Houses is established to consider the consequences both for this House and the other place?
Baroness Stowell of Beeston
I certainly do not want to pre-empt my noble friend’s conclusions when he comes forward with his response to the Prime Minister, but it is worth me reminding the House that he is looking into the constitutional issues that were raised by the proceedings in this House in October. They were unprecedented; they did raise serious questions.
Baroness Stowell of Beeston
They did, my Lords. My noble friend is looking at them while consulting widely—both Members of the other place as well as here. When he reaches his conclusions, I am confident that we will have an opportunity to consider them carefully and decide next steps at that time.
Lord Forsyth of Drumlean (Con)
My Lords, does my noble friend accept that, had this House passed the secondary legislation on tax credits, it would have had the immediate force of law and prevented the Chancellor of the Exchequer abandoning his proposals in his Autumn Statement?
Baroness Stowell of Beeston
My noble friend raises an interesting point. It is interesting because it allows me to say two things. It demonstrates what this House did: it withheld its approval from a Motion that had already been voted on three times and decided in the other House. The key thing about the review that my noble friend is doing is not what the views of this House were but how it decided to express them and the route by which it chose to do so.
Lord Lisvane (CB)
My Lords, will Her Majesty’s Government heed the serious concerns expressed by the Constitution Committee and the Delegated Powers Committee of your Lordships’ House to the effect that the threshold between primary and secondary legislation continues to move upwards, with secondary legislation used increasingly for matters of policy and principle which should be the subject of primary legislation? Will the Leader accept that these issues should be at the heart of the matters which the noble Lord, Lord Strathclyde, is examining?
Baroness Stowell of Beeston
My noble friend is examining how to secure the decisive role of the elected House on matters associated with secondary legislation. Clearly, it is important that all Governments use the right vehicle to secure Parliament’s decision on their business. That is what all Governments seek to do, and it is what we have been doing and will continue to do
Lord Wallace of Tankerness (LD)
My Lords, given that the Leader of the House has indicated that the noble Lord, Lord Strathclyde, and his review team will take into account the views of Members of your Lordships’ House, will she take this opportunity to commend the view of one noble Lord who said in oral evidence to the Joint Committee on Conventions:
“I think we can spend a great deal of time thinking about how one could improve the convention on secondary legislation, but I would not remove the power”?
They were the words of the noble Lord, Lord Strathclyde.
Baroness Stowell of Beeston
Another noble and learned Lord gave evidence to the same Joint Committee—the noble and learned Lord, Lord Falconer. He said this about secondary legislation:
“The question is not: is the power there to vote against it? The question is: is there a convention that says constitutionally we should not do it?”
The answer to the question must be, and is, no.
Baroness Hollis of Heigham (Lab)
My Lords, surely the Minister would agree that this was in no sense a constitutional crisis merely because the House of Lords did what it was supposed to and should do, which is to scrutinise and, where appropriate, ask the Commons to think again. That is what this House decided to do—not to destroy the SI but to delay it to allow the Commons to think again. Once the Commons as a body had thought again, following the Chancellor of the Exchequer, the constitutional crisis disappeared and we all got a result which was welcomed around the House.
Baroness Stowell of Beeston
My Lords, I am sorry, but I disagree with the way in which the noble Baroness represents what happened in October. This House withheld its approval from that statutory instrument and issued a set of demands: it overruled the House of Commons. It did not ask the House of Commons to think again; it overruled a decision that the other House had already considered and decided.
Lord Flight (Con)
My Lords, I believe that in addition to the review of the noble Lord, Lord Strathclyde, there are one or two other bodies working on reform proposals for this House, including one in which the noble Baroness has some involvement. How are the other groups intended to liaise with the research of the noble Lord, Lord Strathclyde?
Baroness Stowell of Beeston
My noble friend Lord Strathclyde is focusing only on secondary legislation, as I have already described. The other groups to which my noble friend refers are looking at other, separate, matters.
Lord Richard (Lab)
My Lords, following on from the question of the noble Lord, Lord Lisvane, does the Leader of the House recognise that it is all very well to say that there is a convention that we should let statutory instruments through without too much difficulty in this House, but that there is a quid pro quo for that—which is that matters which should be considered in primary legislation at the other end of this building should not be introduced by statutory instrument? If the result of the deliberations of the noble Lord, Lord Strathclyde, is, “All right, this House loses the right to throw out statutory instruments”, the other side of that equation is that at the other end of the building the Government undertake that major financial issues should not be introduced by statutory instrument but by primary legislation.
Baroness Stowell of Beeston
In October the Government used the vehicle set out for them to use in the original Act. That is what the Government did and they were at liberty to do so.
Devolution: England
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The Lord Privy Seal (Baroness Stowell of Beeston) (Con)
My Lords, it is the turn of the Conservative Benches. I think it is worth me alerting the Labour Benches to the fact that the noble Lord, Lord Blunkett, is trying to get in as well.
Lord Forsyth of Drumlean
My Lords, could my noble friend explain the implications for public services in England and expenditure of the Smith commission proposals for a no-detriment principle?
Baroness Stowell of Beeston
My Lords, it is the turn of the Labour Benches, but I urge the noble Lords to decide between themselves whom they would like to give way.
Lord Morris of Aberavon
My Lords, is it right for a small country such as the United Kingdom to have four nations developing systems of government at different speeds? Do the Government rule out a constitutional convention, rather than allowing piecemeal development?