House of Lords: Working Practices

Lord Filkin Excerpts

Monday 27th June 2011 Lords Chamber

[Lord Filkin]

My Lords, it has been a real pleasure to hear the debate and to get the sense that there is a broad measure of support across the House and across party for some of the most important recommendations. That was how we worked as a group. We were superbly and subtly led by our chairman. It is not the first time that he has heard that. All the members of the committee worked together, and we were extremely well guided by Christopher Johnson and Susannah Street in the way that they supported us. They were a delight.

In part, that helped us to bring in a consensual report on difficult issues on which we all had strong opinions. I was glad that the noble Lord, Lord Tyler, referred to one of the origins of this report, which was that it was very much the Lord Speaker’s initiative to have a proper, discrete reflection, in the wake of the destruction of this House’s reputation, about whether we could do our job for the public better. That has been a central question before the committee. It has not simply been about whether we like to start at 2 pm or 2.30 pm, but about how do we do our job for the public for whom we are charged with scrutinising legislation, holding the Government to account and being a proper forum for debate. Those questions are the leitmotif that we have tried to bring throughout the report.

For many of us, the central clutch of recommendations is about trying to scrutinise legislation better. Again, it has been an enormous pleasure to hear almost universal support for pre-legislative scrutiny, a legislative standards committee, post-legislative scrutiny and for the subtle change in delegated legislation for which the noble Baroness, Lady Thomas of Winchester, so clearly and cogently expressed the rationale. I thank her for that because it is easy to think that this is the end of the world.

The only voice against was of great concern to me, that of my good former colleague, the noble Viscount, Lord Eccles. I think he was arguing that we should not overreach our hand or overview our power and influence. Of course, he is right. We should always have a sense of modesty—perhaps not always the House’s best skill. However, the argument that we cannot make it perfect is not an argument for not trying to make it better. The test of those changes in terms of legislation is: is it more likely that chipping away, challenging, questioning, having proper processes will mean that legislation will be better done? I believe it will be.

Of course, legislation should sit on a proper bedrock of good policy and reflection and public consultation on that policy. Often it is; too often it is not. The noble Baroness, Lady Murphy, put it beautifully: many of us are sad creatures who are really interested in public policy but we have to exercise that secret sin elsewhere because there are so few opportunities to do it here. The noble Lord, Lord Bichard, no doubt will say something on that. It is a phenomenal waste of this House’s talent that it does not address major cross-cutting issues of public policy. It is unbelievable to the thoughtful general public that we do not do that. Therefore, after very careful consideration, we recommended two additional Select Committees—because one sounded trivial but we should not be silly and go too far because things do have a cost. I very much hope that the House will treat this seriously and the authorities and powers-that-be will put it into practice because we have the strength and resources in this House to add a lot of value and benefit to the public if we scrutinise unscrutinised areas of public policy.

For many of us, the dog that has not barked in this debate is: what happens next? We know in theory what happens next: the usual channels will refer some things to various committees and eventually they will bring back recommendations and the House will decide. That is what we will be told and it is true. Of course, what the House will decide will partly depend on what is served up to it, and what is served up to it can colour the form of debate and the form of decision-making, because that is the way in which we work. Some of us have great concerns about ensuring that we look at these issues.

I give the greatest thanks and respect to the Leader of the House. He has continued to surprise me on this agenda by being more open-minded in process than perhaps his good soul naturally feels and allowing us to play and to have a good chairman and bring in some pretty thoughtful but at times radical recommendations. I hope that he will continue with that stance because he is earning our respect and admiration for doing so.

What worries me is “cost neutrality”. With the greatest humility, I suggest a slight emendation: “cost neutrality in time”. It is an Augustinian concept. I say this for about four reasons. The first is that these costs are trivial. They are trivial in our costs: they are 1 per cent of this House’s costs. I will not make the cheap joke about the number of Peers; you know what I mean. Secondly, they are utterly microscopic in public expenditure terms. Scrutinising a Bill better or challenging a piece of government policy—again I will not mention some pieces of public policy; I do not wish to be contentious—would help the Government and force them to think better. The yield on that expenditure would be phenomenal and we must have the confidence that we have the skills and ability to do so.

The third reason why cost neutrality is an insidious argument is that it massively favours the status quo. It basically says that the existing cost base of this organisation is sacrosanct and that any bit of additional expenditure has to make the case for change. If we are going to make the case for change, it should be on all expenditure being scrutinised, not just on the new expenditure at the margin. We will not review everything, so we should not fetter these recommendations with the shackles of saying they have to have cost neutrality immediately. I am sure it was not so intended but that phrase is at risk of killing the report.

I look forward massively to seeing where we go next. Of course, the biggest way in which we could reduce the cost of these recommendations is to have a proper discussion with the other place—the House of Commons, as my noble friend Lord Grocott would encourage me to say—because if we could do some of these processes jointly the cost would suddenly reduce substantially, at least to this House. I look forward enormously to hearing how the Leader of the House is going to lead us forward to the promised land that we hope we will move towards.

--- Later in debate ---

[Lord Filkin]

All that the report says is that in principle we should apply to primary legislation what already happens to secondary legislation. In the case of secondary legislation, a set of standards for good legislation is defined by the Cabinet Office and a check is then made as to whether they have been complied with. The Butler report is clear; most people say that those are good standards. All the House would do is say whether they had been complied with. It would not look at policy; that would not be its job. Nor would it have the power to say no. It is a decision for the House—it is most unlikely that it would use it—to deny a Second Reading.

[Lord Strathclyde]

Denying a government Bill that had already passed the House of Commons a Second Reading would be an extraordinary thing. There would be another problem. For Bills that started in the House of Lords, if this were not a Joint Committee—I think that there is much more merit it being a Joint Committee than a House of Lords Committee, which I know was the recommendation of the committee—the business managers would seek to avoid starting Bills in the House of Lords. As Leader of the Lords, I think that would be a very bad thing. There are issues here that need to be explored further. There are downsides too, but the basic aim is a good one.