Government: Ministerial Changes

Lord Hope of Craighead Excerpts

Monday 18th July 2016 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, from these Benches I pay a warm and special tribute to the noble Baroness, Lady Stowell. She and I first worked closely together on the Bill to which the noble Baroness, Lady Smith of Basildon, referred, the Marriage (Same Sex Couples) Bill in 2013. I certainly remember very well the evening when she tackled what was a difficult issue with great humour and was able to explain it in a way which, at the end of the day, everyone understood. It received Royal Assent three years ago last week. That was a productive and friendly working relationship, and one that continued not only during our time together in government, when I served as her deputy as Deputy Leader of the House, but since the general election last year when, although on opposite sides of your Lordships’ House, we still had to meet regularly, always with cordial co-operation, albeit that we did not always agree.

The skill that the noble Baroness demonstrated in steering that Bill through the House and dealing with the many difficult issues during her time as a Minister in the Department for Communities and Local Government put her in good stead to lead your Lordships’ House. During her tenure as Leader, the noble Baroness constantly looked to see how we could improve the ways in which we operate to ensure that we are as effective as possible in how we conduct ourselves—as has been said, it is never easy. I know from our many conversations that she was ever mindful of trying to safeguard the reputation of your Lordships’ House, particularly when we are understandably under so much public scrutiny.

The noble Baroness also recognised some of the shortcomings of our domestic governance arrangements and set up a working group under the direction of the noble Baroness, Lady Shephard of Northwold, to review and make recommendations for new ways of working. The final Motions to put those changes into effect are due to be put before the House on Thursday, and I am sure these new structures will serve as a lasting legacy to the work of the noble Baroness, Lady Stowell, and her determination to ensure that this House always looks to improve itself and to be the best it can be.

I also take the opportunity to welcome the noble Baroness, Lady Evans of Bowes Park, to the role of Leader of the House. She takes on this role at a momentous time for our country as the Government negotiate our withdrawal from the European Union. I know your Lordships’ House will take a keen and particular interest in these negotiations as they progress, and I am sure the weight of experience in this House and the very valuable work done by our European Union Committee will be of assistance to her as she represents our House in government.

When I welcomed the noble Baroness, Lady Stowell, to her role as Leader on 15 July 2014, I noted that later that afternoon she would have to attend her first meeting of the House Committee. The noble Baroness, Lady Evans, will have to wait a bit longer for that particular perk of office—it will be tomorrow afternoon. Indeed, when I saw on today’s Order Paper the Motion substituting the noble Baroness, Lady Evans, for the noble Baroness, Lady Stowell, on a whole range of committees, I recalled that when I succeeded my noble friend Lord McNally as leader of the Liberal Democrat Peers, the previous Chairman of Committees moved a similar Motion and said that he did so with commiseration. Aspiring candidates to succeed me on these Benches may wish to take note.

I look forward to working with the noble Baroness, Lady Evans, for a few more weeks still, and wish her the best of luck in her new role as Leader of Your Lordships’ House.

[Lord Hope of Craighead (CB)]

My Lords, on behalf of my colleagues on the Cross Benches, I, too, associate myself with the warm and well-deserved tributes that have been paid to the noble Baroness, Lady Stowell, and wish her well as she returns, as I am sure she will, to the Back Benches. Like others in the House, I confess to having been taken aback by the speed of events last week. The first indication I had that she was no longer to be Leader and Lord Privy Seal was when I arrived at her office at midday on Thursday for one of my regular fortnightly meetings with her to be told for the first time ever by one of her secretaries that she was too busy to see me. Unexpectedly, the meeting had had to be cancelled. As I returned down the corridor to walk back to my office, the expression on the faces of various people whom I passed who already knew more than I did suggested that there was much more to it than that. The sadness at what was happening was very evident.

I know from my many meetings with her during the past year in my capacity as Convener, which I very much valued, how much she cared for this House. Her sudden departure has meant that some of the things that she wished to do will have been left undone, but she has done much, as the noble Lord, Lord Wallace, said, to promote and carry through fundamental reform of the committee structure by which the business affairs of the House are to be governed, and that can indeed be regarded as her legacy. She brought home her concern for the traditions and customs of the House to me on a personal level, too. On several occasions, when it seemed to her that I had said or done something that was not quite right, she was quite candid—to adopt the adjective used by the noble Baroness, Lady Smith. She would tick me off. I can assure your Lordships that this was always done with a smile on her face, in the most tactful manner. As a newcomer to the arcane arts which I have now to perform on behalf of my colleagues on these Benches, I valued those gentle reminders, and I was grateful for her guidance and encouragement. They were a reminder to me, too, of how much she cared for the traditions and best interests of this House. We wish her well and look forward to the contribution that she can certainly make to our work in the future.

I take this opportunity to welcome most warmly to her very important role the noble Baroness, Lady Evans of Bowes Park. She brings to its responsibilities a very evident spirit of energy and enthusiasm—and, dare I say it, unusually for a Member of this House, she has youth on her side, too. These are challenging times, when those qualities will be much needed. On behalf of the Cross-Bench group, I look forward very much to working with her in my capacity as Convenor, and I wish her all success as she enters into the duties of her office.

[The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)]

My Lords, first, I echo the tributes paid to my noble friend Lady Stowell. I know that she was incredibly proud to be Leader of your Lordships’ House and was unwavering in promoting our role in the parliamentary process. Noble Lords have referred to her outstanding work on the equal marriage Bill in the Chamber, and as Leader she was just as tenacious, making the case for your Lordships within government. She saw an essential part of the Leader’s job as maintaining the legitimacy and credibility of the Lords as a revising Chamber, while also making sure that the Government secured their business. She wanted us to focus first and foremost on complementing and refining the work of the other place, helping to give the public confidence in the parliamentary process. She can be proud that, in her time as Leader, that spirit shone through in everything she did. Indeed, it is greatly to her credit that the legislative programme of the first Conservative Government for nearly 20 years was delivered, despite there being no Conservative majority in this place. As a Whip on several much-debated Bills, I have the battle scars to prove just how difficult that was.

My noble friend was just as relentless in striving to ensure that, as a House, we did whatever was necessary to meet the expectations of the people whom we serve. She worked hard behind the scenes to make sure that the Hayman Bill had a fair wind, and nobody has done more to promote the cultural shift that we have seen with the introduction of retirement, whereby the 50 Peers who have stood down exemplify our ability as a House to adapt. My noble friend will continue as co-chairman of the committee looking at the future of the Palace of Westminster, which is further testament to her respect for this House.

Personally, I am privileged to call my noble friend a friend. She has been incredibly supportive to me since I came into your Lordships’ House, for which I am truly grateful, and was always ready with words of encouragement, serving as a great role model for me. I was fortunate to serve under her and, on behalf of all noble Lords, I sincerely thank her for her service.

Finally, I thank noble Lords from across the House for their messages of support since my appointment. While I am, I know, a relative newcomer, I have a deep appreciation and admiration for the important role that this House plays in governing our great country. I am honoured to have been asked to be a member of the Cabinet by the new Prime Minister, but I am particularly proud to be Leader of the House of Lords—and by that I mean Leader of the whole House and not just the Conservative Benches. I assure your Lordships that I shall work tirelessly to do this House proud, building on the excellent work of my noble friend.

House of Lords: Domestic Committees

Lord Hope of Craighead Excerpts

Monday 9th May 2016 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I also thank the noble Baroness the Leader of the House for initiating this debate and congratulate the noble Baroness, Lady Shephard of Northwold, and the other members of her group—including the noble Lord, Lord Turnbull, from these Benches, who unfortunately cannot be here this afternoon—on their helpful and constructive report. I congratulate the noble Baroness on the compelling way in which she presented the report and the reasons for the conclusions that were reached.

At first sight, this is perhaps not the most exciting topic for a debate, but keeping our systems for organising how this place is run effective and up to date is a matter of first importance. I am very glad we have been given this opportunity to discuss what the report recommends. I am sure that both the Leader and the noble Baroness, Lady Shephard, will be encouraged by the number of noble Lords who have remained in their places to listen to their speeches and, indeed, will be present for the rest of the debate.

I think one must have a basis of knowledge and experience to subject a report of this kind to constructive criticism. I am very conscious that I am a relative newcomer to the work of the domestic committees. It was not the practice for the Lords of Appeal in Ordinary to be asked to serve on them when I was serving here as a Law Lord. Then, for four years, on moving to the Supreme Court as its Deputy President, I was disqualified from taking any part in the work of the House and my interest in what was going on here diminished accordingly. My disqualification was lifted in July 2013, after my retirement from the court, and suddenly, on taking up the post of Convenor last October, I found myself a member ex officio of two of the committees concerned with the governance of the House—the House Committee and the Administration and Works Committee—as well as of the Procedure Committee and the Privileges and Conduct Committee, with whose work the report is not concerned. So I have that advantage. I follow the noble and learned Lord, Lord Wallace of Tankerness, in expressing my admiration for the work of the committees of which I now find myself a member and all those who contribute to their discussions.

As I am not a member of the three other domestic committees—the Refreshment, Information and Works of Art Committees—I have no first-hand experience of their work; nor do I have any experience of their work at second hand as, unless I am very much mistaken, there are no arrangements for the work of these other committees to be subjected to regular scrutiny by the House Committee, as the governance structure in figure 1 on page 9 of the report suggests it ought to be. I may not have been paying attention. If that is the case, I apologise, but I simply cannot recall the kind of communication between these committees in either direction that one might have expected. During my time on the House Committee I have not had to consider anything about the works of art with which that committee is concerned.

I have no doubt that the officials on whom we depend so much for what goes on in this Building are well in touch with each other, and that the high quality of their work is not affected at all by any defects that may have been drawn attention to in the noble Baroness’s report. But my experience suggests that there is a lack of clarity about how the committees should work with each other and the roles of the Members who serve on them. Given my experience, I do not require much persuasion that there is a real problem here that demands our attention.

Another feature that perhaps should be stressed is the relationship with the House of Commons. I have become aware through my membership of the House Committee of what is going on in the House of Commons. About two-thirds of our services are shared and, as the report points out, there is a growing need for a sense of cohesion and shared purpose between the two Houses. Those who serve on the House Committee at least are very much aware of this and of the work that is being done to achieve this where it is in our interests to do so. The main driver for this, no doubt, is the need to achieve efficiency savings right across the board in public expenditure, but working together is not just about saving money; the increased efficiency that it brings is a virtue in itself.

The recently introduced governance structure in the House of Commons, which is set out in figure 2 on page 12 of the report, has been designed in the interests of efficiency. In comparison with what the other place now has, our governance structure does look rather out of date. I agree with the report that greater clarity is needed, especially about the role of the senior committee. I do not think we should copy precisely what goes on in the other place but I agree with the report that greater similarity between the overall structures of our respective domestic committee systems is desirable. That should make the process of decision-making in the areas of shared and joint services simpler and easier to achieve. I also welcome the recommendation that the work of the senior committee should be supported by two non-executive members with suitable boardroom experience. In an increasingly complex world, we need to keep pace with the outside world in how the managerial functions of such a body are and should be conducted.

Lastly I welcome, too, the emphasis on the need for behavioural changes on the round-table approach to our meetings. Rather like the noble and learned Lord, Lord Wallace, I do not think I am giving away a secret when I say that at the last meeting of the House Committee, which was chaired by the Lord Speaker, we were shown how those could work effectively. We were invited to the River Room and served with biscuits and tea, as we sat around a table with a white tablecloth to discuss the business of the committee. It was a welcome change and, perhaps, an example of what can be achieved to make our discussions a little more friendly and constructive.

In principle, therefore, I agree that the structure recommended in this report should be implemented. I hope this can be done without delay but I should like to mention a number of points of detail. They are concerned with what the Leader of the House referred to as the next phase. For that reason, they are matters not fully set out in the report but I suggest that we need to give careful attention to what lies ahead and I offer these thoughts with that in mind.

First, I have some questions about structure and timing. Reference is made in paragraphs 64 to 69 of the report to the need for clarity in delegation and the setting of targets. I of course welcome the emphasis on both. The first task of the senior committee is to be for it to define its terms of reference and report them to the House for ratification. Only after that has happened, it seems, can the terms of reference of the supporting committees be approved and the appropriate delegations take place. This sounds very sensible but how is it to work in practice? Which committee is to be set up first? I assume it will be the senior committee, as the services committees cannot start work until their terms of reference have been worked out for them—and that cannot happen until the senior committee’s terms of reference have been ratified.

If I am right about this, however, the phasing of the transfer of responsibility from the old committees to the new will require careful planning. The existing committees will have to remain in being until the committees to which they will transfer their responsibilities have been established. We must remember that we are talking here about real people and the contribution our Members, from all groups, make to the running of the House. The work of the officials will no doubt go on as normal but for the Members it is different, as the scrutiny committees on which they serve are created or cease to exist. In their interests I ask: what is the timing to look like? Can each of the committees be given a business plan for this, so that the whole process is completely understood and properly co-ordinated?

Then there are the criteria for appointments, to which paragraph 88 of the report refers. I see merit in the proposal that there should be more stringent criteria for nomination and that the chairs of the two supporting committees should have an input into that process but here, too, there are questions about timing. When and how are the chairs of these committees to be appointed? As they are to be members of the senior committee as well, it would seem that they need to be identified and appointed at the outset, when that committee is being set up. But for the recommended process to make sense it would seem that their appointments should precede the nomination of the other members of their respective committees. Is that what is intended?

It would seem to follow, too, that they would need to be appointed before the terms of reference of their respective committees have been worked out and that they should be able to contribute to that process. That would seem a sensible way of dealing with the matter but, again, is this what is intended?

Lastly, I suggest that we need a little more clarity as to who is to take on the responsibility of presenting the reports to the House from the domestic committees when the post of Chairman of Committees—whose present holder does such an excellent job under our current arrangements—is brought to an end, as recommended in paragraph 70. In that paragraph, it is said that the holder of the new post—let us call him the senior deputy speaker—should concentrate on areas of procedure and conduct. But if that is to be so, who will be answerable to the House for the work of the other committees—the senior committee and the services committees? I suppose the chairs of the services committees should fulfil that role in their individual cases, but at least one of these chairs is likely to come from the party groups. What about the senior committee, which most of all needs someone to speak in the House on its behalf?

At first sight, the choice would seem to lie between the senior deputy speaker and the Lord Speaker, but of course under our current arrangements the Lord Speaker does not have a speaking role. It was otherwise when we had a Lord Chancellor—I remember very well debates being conducted with great skill from the Woolsack—but those days are past and it may very well be a step too far for the Lord Speaker to assume the responsibility of speaking on behalf of these committees. Does this then mean that the responsibility for answering for the work of the committees should be given to the senior deputy speaker? If it is, following the comment of the noble and learned Lord, Lord Wallace, would that affect the salary that that post might be expected to attract?

I throw these points out for further thought, well understanding that the Leader is not in a position to provide answers to them. It suggests, however, that a great deal of thought is still needed, and discussions will no doubt take place to find proper answers. I am sorry to have detained your Lordships for so long with these points. This afternoon we are really looking at the recommendations in principle, and I offer from these Benches my support for what the report has recommended to us.

House of Lords Appointments Commission

Lord Hope of Craighead Excerpts

Thursday 21st April 2016 Lords Chamber

[Baroness Stowell of Beeston]

It is very important that all Peers make a proper contribution to this House in a way that enables us to give the public confidence in the laws that Parliament makes. However, it is absolutely appropriate and proper that the party leaders are responsible for ensuring that those they nominate will make their contribution effectively, and that they are held to account for that. The process and service that HOLAC provides is important. When it makes recommendations, no Prime Minister, whether this one or any before him, has ever ignored that commission’s advice.

[Lord Hope of Craighead (CB)]

My Lords, there is nothing wrong, as the noble Lord, Lord Forsyth, has been indicating, with the powers of the commission as far as the Cross Benches are concerned, but there is an issue about numbers and maintaining a fair balance between the Cross Benches and the other groups in the House. Would the Leader of the House be prepared to give an indication that that balance, which is approximately 20% of the House, will be maintained? Ultimately, the decision on numbers depends upon a communication between the chairman of the commission and the Prime Minister, so the Government do have a part to play in seeing that numbers are maintained.

[Baroness Stowell of Beeston]

And the number of Cross Benchers as a proportion of this House has been pretty stable for about three decades now. There is not actually a specific formula for the number of Cross Benchers, but the noble and learned Lord makes an important point about the importance of the Cross Benches to our work. That is why, alongside other appointments that the Prime Minister has made in recent times, he has made important appointments to the Cross Benches of noble Lords who are making an active contribution to our work, and that is something I know he will continue to do.

Her Majesty the Queen: 90th Birthday

Lord Hope of Craighead Excerpts

Thursday 21st April 2016 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, from these Benches, I am delighted to add our good wishes and congratulations to Her Majesty the Queen on this very special occasion of her 90th birthday. Her Majesty has had, and continues to have, an extraordinary life which she has dedicated in service to our country.

As we have heard, we are living today in a very different society from the one into which Her Majesty was born 90 years ago today. Then, the sufferings and losses of the Great War were still raw. It was less than a decade since the United Kingdom had emerged from the horrors of the First World War, vowing that such devastating conflict should never happen again. And yet, sadly, it did happen again, when Her Majesty, then Princess Elizabeth, was barely a teenager. As we have heard from the Leader of the House and the Leader of the Opposition, during the Second World War Her Majesty not only served in the Auxiliary Territorial Service but brought comfort to many young people by broadcasting a message to evacuees, urging them to have courage.

Thankfully, today the prospect of war breaking out in the heart of Europe is unimaginable. Today, too, we are living in a world which is far more interconnected than it has ever been. Again, the Queen has fully engaged with this changing world. The metamorphosis of empire and colonial rule into the Commonwealth of free nations has in no small way been achieved by the Queen’s strong personal commitment to that unique institution and force for good in the world. She has kept up with technology and the IT revolutions which have transformed our world. In March 1976, when almost 50, and taking part in a network technology demonstration, the Queen was the first Head of State to send an email, although I rather suspect they did not call it that then.

Throughout the huge change that this country has experienced in the past 90 years, Her Majesty has been a constant, standing with her people whether it be in times of tragedy or times of joy. Her unwavering sense of duty, supported for more than 68 years by the Duke of Edinburgh, and her commitment to the service and welfare of the people of this country are surely an inspiration to us all. When speaking in your Lordships’ House on the eve of Her Majesty’s 80th birthday, my noble friend Lord McNally recalled the vow that the then Princess Elizabeth made in Cape Town on her 21st birthday. She said:

“I declare before you all that my whole life, whether it be long or short, shall be devoted to your service”.

Gladly, it has been a long life and surely no vow has been more dutifully honoured.

On behalf of my Liberal Democrat colleagues, I offer my warmest good wishes to Her Majesty the Queen on this most joyous of milestones for a day full of love and affection from family, friends and a grateful nation. Long live our noble Queen!

[Lord Hope of Craighead (CB)]

My Lords, as the House knows, members of the Cross-Bench group whom I represent seldom, if ever, speak with one voice. I am reminded of that feature of our existence almost every day, but this occasion, surely, is quite different. I know that each member of the group would wish me to say how delighted we all are to be associated in every way with what has been said, and that we join together as one in supporting this Motion.

The Cross-Bench group brings to this House Members with a wide range of experience. Many have spent their entire working lives in the public service. Some, by reason of the positions that they have held, have a much greater appreciation than the rest of us of the volume of work with which Her Majesty has lived for so many years, with such a great sense of dedication and commitment. But all of us, in one way or another, have our own memories of her and of the service that she has given. We can all share in the memories of the great occasions.

Perhaps one above the others that deserves to be remembered today is Her Majesty’s state visit to Dublin in May 2011. Her remarkable speech at the state dinner in Dublin Castle was surely an extraordinary moment in history, which only she could bring about. Her silent tribute in the garden of remembrance the previous day had done so much to settle memories of the past.

One occasion that stands out in my own memory, because I was there, was her Address to both Houses in Westminster Hall on the occasion of her Golden Jubilee. It is hard to believe, but that was 14 years ago in 2002. The then Speaker, Speaker Martin, and the Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, who I am glad to see is in his place, presented their addresses and handed them to her after reading them. Then it was her turn. She stood up and went forward to the microphones to read her own speech. There was no table; there was no lectern; she held her speech in front of her as she stood alone, I thought with great courage, on the steps in front of a huge audience. Unlike the speeches at a State Opening, that speech was her own creation—full of warmth and perfect for the occasion. She ended with a triumphant sentence assuring us of her resolve to continue to serve us all to the best of her ability. It was faultlessly read, as always, in a firm, clear voice. She then sat down to prolonged applause, which lasted for well over a minute. She seemed not to have expected that, and was greatly moved by that applause, but it was so well deserved.

Later she joined us for a reception in the Royal Gallery. One of the Law Lords who was with me had his back to her as she reached us. He was tapped on the shoulder by the Lord Chancellor. My colleague had the misfortune to be in the process of eating a large biscuit. Something was bound to go wrong and, indeed, it did. When he turned round, he was so astonished to see her standing beside him that he dropped his biscuit onto the floor right in front of Her Majesty’s feet. Her Majesty, who has a great sense of humour, was much amused. Another Law Lord, a judge from New Zealand, was then introduced. Her Majesty said to him, “I hear that you are about to end your appeals to the Privy Council”. He replied that it would not affect him, as he had already reached the retirement age of 75 and would no longer be able to sit. “When was your birthday?”, she asked. When he said that it was in June, she exclaimed, “You are two months younger than I am”. So much hangs on those words—we can all do our own arithmetic—but those words were as clear a demonstration as there could be that retirement was not for Her Majesty, that it is not and it never has been. How blessed we all are that this is so.

On behalf of all of us on the Cross Benches, I join with the rest of the House in supporting the Motion and wishing Her Majesty a very happy birthday. We offer her our warmest congratulations and our profound thanks. I think it is also right to say that we offer our profound thanks to His Royal Highness the Duke of Edinburgh—always there at Her Majesty’s side and with his own unique sense of humour, as has been said. For him, too, surely, this is a very happy day.

[The Archbishop of York]

My Lords, on behalf of the Archbishop of Canterbury and all the Lords Spiritual, I wish to endorse most heartily the proposed message of congratulations to Her Majesty, by divine providence Queen, head of the Commonwealth and defender of the faith.

At her coronation, Archbishop Fisher placed on the Queen’s wrists two newly-made gold bracelets, presented by a number of the overseas realms and territories as a symbol of the Commonwealth. As he did so, he said these words:

“Receive the Bracelets of sincerity and wisdom, both for tokens of the Lord’s protection embracing you on every side; and also for symbols and pledges of that bond which unites you with your Peoples”.

Today we give thanks for the Lord’s protection that has embraced Her Majesty on every side these many years. We also want to pay tribute to the sincerity, wisdom and devotion which she has consistently manifested throughout her long and glorious reign. They have served greatly to strengthen that bond between the Sovereign and all her peoples.

Since 1952, there have been seven Archbishops of Canterbury and seven Archbishops of York. What Her Majesty has made of that richly diverse and eclectic collection of Primates will no doubt never be revealed. All that I can say, from those of the Archbishops whom I have known, is that each has like me valued the support, interest, faithfulness and prayers of our Supreme Governor more than it is possible to describe. There are very few other people to whom an Archbishop can open his heart, knowing that his confidences will go no further and certain that at the end of the conversation he will go away affirmed and encouraged.

And so let this be a day for thanksgiving and much rejoicing on Her Majesty’s birthday. Long live the Queen!

Housing and Planning Bill

Lord Hope of Craighead Excerpts

Wednesday 13th April 2016 Lords Chamber

[Baroness Gardner of Parkes (Con)]

My Lords, I, too, have served on the Delegated Powers and Regulatory Reform Committee for at least two sessions of three years each. What concerns me is the word “regulations”. Does it mean that this will be another regulation that will come to us in a pre-formed state and we will not have any opportunity to consider its implications? I find it very worrying that we are doing more and more by secondary legislation and less by primary legislation, and I should like the Minister to cover that point in her reply.

[Lord Hope of Craighead (CB)]

My point refers more to what the noble Lord, Lord Beecham, said, although I very much sympathise with what has just been said, because I have been criticising the use of Henry VIII clauses, among other things. I am instinctively resistant to the idea of too many regulations, but there are occasions when a ministerial determination may be more protected if it has parliamentary approval—I am thinking of the risk of judicial review. I do not know enough about the field that we are dealing with to see how real the danger is, but it might be worth the Minister considering whether that element of protection would be of value. There is no doubt that, if it comes in the form of regulation, no judge will question its authority or consider whether it is proportionate or whatever else it is, whereas a determination by a Minister is open to review. It is a point that is worth considering, if the Minister is considering the issue at all, as one of the factors that it would be worth our bringing into play to decide whether it would be right to accept the amendment being proposed.

Strathclyde Review

Lord Hope of Craighead Excerpts

Wednesday 13th January 2016 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it is a very real pleasure for me to congratulate the noble Lord, Lord Darling, on his fascinating—indeed, outstanding—maiden speech. It is, of course, a much easier task for me than it would be for a shadow Chancellor to try to reply at short notice to one of his speeches from the Front Bench in the other place. At least I have that advantage. I can look back over the noble Lord’s career for over 40 years, ever since he joined the Faculty of Advocates, of which I was already a member, in 1984. For a time he was a member of a remarkable group of members of that body, which included the late John Smith, the noble and learned Lord, Lord Wallace of Tankerness, and the noble Lords, Lord Campbell of Pittenweem and Lord Selkirk of Douglas, who sought to combine practice at the Scottish Bar with politics. He was already a member of Lothian Regional Council, if I recall correctly, when he joined the faculty. Not long after that—I think within three years—he became a Member of the other place for an Edinburgh constituency. That led to a decision, for very good reasons as we now all know, to give up a future career in the law and instead move into politics. It is as a result of that that he comes to this House with a remarkable fund of knowledge and experience. We also owe him an immense debt of gratitude for the work he did as leader of the no campaign in Scotland last year. It was an outstanding service to the country, appreciated very much in this House. It is against that background, too, that we all welcome him to our number. I am sure that we all look forward very much to many contributions from him on that subject and others.

I shall say a few things about the review by the noble Lord, Lord Strathclyde, not in my capacity as Convenor, but in my personal capacity. I begin by drawing attention to points made by the noble Lord, Lord Butler of Brockwell, who unfortunately cannot be here to speak himself, on 17 December last year in reply to the Leader’s Statement on the publication of the review. He pointed out that for many years now there has been dissatisfaction in all parts of the House with the binary choice available to us for either accepting or rejecting statutory instruments. He was speaking, after all, with some knowledge, because he was a member of the commission under the noble Lord, Lord Wakeham, which reported on that issue as long ago as 15 years, and of the Leader’s Group under the noble Lord, Lord Goodlad, which reported a year later. For that reason, he encouraged us to look positively at the proposals as pointing the way forward to resolve a problem that has been with us for far too long. He urged us not to be diverted by the circumstances that gave rise to the review, but rather to concentrate on the way forward. He emphasised, as other Members of the House have today, that the problem is one of long standing that needs to be resolved, and the sooner that happens the better.

Of course, a balance has to be struck. I welcome the careful attention that the noble Lord, Lord Strathclyde, gave to the work of the scrutiny committees—both the Joint Committee and the committee of this House—and that work’s importance. It is vital that it should continue. Of course, for that reason, option 1 is not one that anybody in this House can take seriously at all. To add to the point that others have made, I draw attention to a memorandum that the noble and learned Lord, Lord Walker of Gestingthorpe, sent to the noble Lord’s review, in which he drew attention to some important examples of the use of statutory instruments that now have statutory authority. We have moved far away from the primary purpose of delegated legislation, as set out on page 667 of Erskine May, which is to deal with,

“details of an essentially subsidiary or procedural character”.

The noble and learned Lord gave two examples of that, one from the European Communities Act 1972, where, in Section 2 and Schedule 2, provision is made for remedial legislation to cure incompatibility with convention law; and the other from Section 10 of and Schedule 2 to the Human Rights Act 1998, to deal with incompatibility with convention rights. A mechanism is a statutory instrument. It really would be absurd if this House, in dealing with issues of considerable difficulty and, indeed, possibly constitutional importance, could not comment on and examine them.

I shall say nothing about option 2, except to endorse the point that the noble Lord, Lord Jopling, made, that it really would be a recipe for continued argument. We really do not want that any more.

So we are left with option 3, which certainly has its attractions and which I, for my part, would endorse, but certainly there is more work to be done. I shall mention just one or two points. First, I welcome the point that the noble Lord, Lord Strathclyde, made about the need for clarity over what amounts to a denial of approval. We simply do not want to go through the kind of arguments that we had last term on that point. Although there may be difficulties about a fixed period, it is crucial that we have clarity as to what happens next if the thing goes to the other House. We really need to be sure that something proper will be done, that proper scrutiny will be given and, furthermore, that good reasons are given by the Executive if the decision is to reverse the decision of this House.

I endorse the point that others have made, in particular the noble Baroness, Lady Bowles, about amendment. Amendment has a great value. If you make an amendment it focuses the point of dispute. It requires an answer designed to deal with the particular point raised by the amendment. I hope that that point can be taken very seriously.

Lastly, I go back to the point that the noble Lord, Lord Empey, raised. He drew attention to what would happen if the reform takes the form that option 3 suggests. I think that the noble Lord, Lord Strathclyde, has played down the extent to which use would be made of that option. If given legitimacy, I am sure people would begin to use that route. I am not as pessimistic as the noble Lord, Lord Empey. I do not think that it would be overused, but it would be unwise to assume that it would not be used. I suspect that it would be used quite frequently in circumstances where, in the past, quite rightly, we have shrunk back from something that would, in effect, run the risk of contravening a convention of which we were rather uncertain.

English Votes for English Laws

Lord Hope of Craighead Excerpts

Wednesday 21st October 2015 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I should like to contribute a few words in the gap. One or two others may wish to do so as well, so I shall be as brief as I can. I am sure that the Government are right to address the West Lothian question—or the English democratic deficit, as the noble Lord, Lord Foulkes, called it—but what has puzzled me all along is why they seek to do it in this way and not by primary legislation, or at least under the cover of primary legislation. I should be grateful if the Leader of the House would explain why primary legislation is not being resorted to.

It seems to me that if the Government are to step outside the established procedures for legislation, which have the protection of the principle of the sovereignty of Parliament, they will do so at their peril. There are people outside here—we know who they are—who will seek to undermine, by means of judicial review, legislation that does not have the security of the established procedures. The noble Lord, Lord Kerr, hinted at that point a moment ago.

The problem that I see goes back to a point that the noble Lord, Lord Forsyth, raised about taxation. I do not see how a Government can rely on legislation passed by this new procedure, which is subject to the risk of challenge in the courts, until the procedures have worked their way through the courts. I do not say that anybody who seeks to challenge the legislation is bound to succeed; that is not the point. The point is that so long as there is the risk of challenge, and the delay of waiting for the courts to resolve the issue, the legislation cannot be brought into effect, because of the risk of having to unravel everything if, by some mischance, it is declared to be invalid.

Leaving aside the problems of conventions and so forth, it has always seemed to me that if the Government wish to proceed now, and if they want to take the safest course, they should do so by means of primary legislation. I shall not elaborate on that, but it is an absolutely fundamental point. I should be grateful if the noble Baroness would explain why that route has not been taken, in view of the risks to which the present solution seems to give rise.

Those risks were highlighted by what the noble Lord, Lord Reid, said about the problems of certification. I know from sitting in such cases how difficult it sometimes is to determine whether something is a devolved issue or a reserved issue. These are tricky points of law, and to solve the problem in the way that is being proposed seems to increase the risk of challenge, which is the last thing one would want in the case of legislation that the Government wish to pass to enable them to run the country according to the established procedures.

Parliamentary Privilege

Lord Hope of Craighead Excerpts

Thursday 20th March 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, like others who did not have the privilege of serving on the Joint Committee, I congratulate that committee and all its members on an excellent and eminently readable report. I also thank the noble Lord, Lord Brabazon of Tara, for initiating this debate and providing me with the opportunity to contribute to it, which I greatly welcome.

I should like to concentrate simply on the relationship between Parliament and the judiciary. In R v Chaytor, the case to which reference has been made, the late Lord Rodger of Earlsferry said that an invocation of parliamentary privilege is,

“apt to dazzle lawyers and judges outside Parliament”.

I think that his point was sometimes simply that the invocation of the words is regarded as a sort of red light—“Keep off the parliamentary lawn”. However, as Lord Rodger noted, Lord Brougham, when he was Lord Chancellor, cautioned against that approach. His advice was that the courts should not accede to claims of privilege,

“the instant they hear that once magical word pronounced”.

The issue requires to be addressed with more care than that and with a greater regard to the context. Article 9 of the Bill of Rights must, of course, be respected. However, as Lord Brougham said, it cannot have been intended to apply to a matter for which Parliament, especially its individual Members, cannot validly claim the privilege of exclusive cognisance at all. That was indeed what Chaytor was about.

I have to confess that I was surprised to read in paragraph 32 of the Joint Committee’s report the proposition that the courts can only interpret and apply the law, and that making law is for Parliament alone. That, with great respect, is not entirely accurate. There are many areas of the common law that have been developed by the judges with which Parliament has not dealt at all. In those areas, as was explained by the then senior Law Lord, Lord Reid, in 1972, the judges do indeed make law. It is true that they do not have the last word. It is always open to Parliament to reverse the position if it thinks that the judges have got the law wrong, or if the law declared by the judges is not something with which it agrees. However, as the Lord Chief Justice, the noble and learned Lord, Lord Judge, said, ultimately it is Parliament that is sovereign. However, much of the law that is applied day and daily in our courts is law made by the judges. That is one of the great strengths of our legal system. After all, legislation is inevitably a rather blunt instrument. The virtue of our common law is that it can be adapted to fit precisely to the facts of each case.

Leaving that minor criticism aside, however, I welcome the way in which the report deals in chapter 5 with the important issue of judicial questioning of proceedings in Parliament. The Government refer in their response to what they describe as the continuing good relations between the judiciary and Parliament. The relationship is indeed a good one. I agree with the noble Lord, Lord Norton of Louth, that the atmosphere is one of comity rather than conflict. In my experience, both sides are careful to respect the boundaries between what is and what is not permissible. That is certainly so of the judges.

The case of R v Chaytor obviously helped a great deal in clearing the air on this subject, which was causing concern when the idea was promoted of engaging in this report in the first place. I had the advantage of sitting in the court, together with my noble and learned friend Lord Brown of Eaton-under-Heywood. We and, indeed, all members of the court were very conscious of the need to respect the privileges of Parliament, which the appellants—parliamentarians all of them—had invoked. In the event, it was relatively easy for the court to conclude that there was nothing in the allegations against the appellants that related in any way to the legislative or deliberative processes of either House or their Members. As the noble Baroness, Lady Healy, said, a crime is a crime. It was relatively easy to reach that conclusion and the court held that the prosecution in the ordinary courts for the parliamentarians’ crimes of dishonesty was not precluded by Article 9. It is worth noting, as my noble and learned friend Lord Brown said, that nine justices rather than the usual five sat in that case. That was in itself recognition by the court of the importance of the issue that it had to address.

Like my noble and learned friend, I believe that the Joint Committee was right, in a later part of its report at paragraph 229, to criticise the decision in Rost v Edwards. It is worth remembering that that case was decided as long ago as 1990. The judge in that case allowed questions to be put to the Member as to his reasons for not registering an interest in the Register of Members’ Interests. However, I agree with my noble and learned friend Lord Brown that this was simply an aberration. Quite a lot of water has flowed under the bridge since then, and I should have thought that it was now clear and beyond dispute that all questions as to a Member’s reasons for declaring, or failing to declare, an interest for the purpose of proceedings in either House must be a matter within the exclusive cognisance of Parliament.

It is worth noting that in paragraph 23 the Joint Committee says that it would expect the two Houses to intervene should such a case arise in the future. I should add a footnote to that important point. The absence of such an intervention was noted in the Chaytor case. It was also noted much more recently in the HS2 case, on which the UK Supreme Court delivered judgment on 22 January this year. The point was picked up by both the president, the noble and learned Lord, Lord Neuberger, and by Lord Reed. There would be no difficulty in making an intervention should the Houses wish to do so. The rules of the court enable any person with a sufficient interest to intervene in an appeal. The court itself, if so minded, can ask for submissions to be made, and it might take that step itself if it felt that it needed to know what Parliament’s position was if it was in doubt. However, it would be best, as the report suggests, if Parliament itself were to take the initiative.

Chapter 5 dwells on the question of whether reference to proceedings in Parliament for the purpose of judicial review of governmental proceedings could be damaging. The suggestion is that this could lead to a blurring of the constitutional separation between the courts and Parliament because it would seek to question what was said. That point is made in paragraph 132. I agree with a great deal of what the noble Lord, Lord Davies of Stamford, said. I see great force in the objection that he put forward because the risk of the courts going astray on this point is less acute than this part of the report suggests, although I should make it clear that I agree with the conclusion in paragraph 136 that legislation prohibiting the use of such material is not required. I agree with the noble Baroness, Lady Healy, that that should be resorted to only when absolutely necessary; and that situation has not arisen.

Perhaps I may say a little more about the HS2 case, which, because the judgment was delivered this year, was not dealt with at all in the report. Your Lordships may like to know that one of the questions raised in that application for judicial review was whether the Government’s decision to obtain development consent for HS2 by means of the hybrid Bill procedure in Parliament was compatible with the requirements for a strategic environmental assessment under the EU’s SEA directive. The Supreme Court asked itself whether it was appropriate for it to consider that question at all, as it would require an assessment of the effectiveness of the parliamentary procedure. Lord Reed, who delivered the leading judgment on this point, said that he was conscious of the importance of refraining from trespassing upon the province of Parliament, or of even suggesting that he should do so. The president, the noble and learned Lord, Lord Neuberger, too, was careful to say that he recognised the importance of the principle. As it happened, the court was able, in the performance of its ordinary duty of construing the legislation, to hold that it could and should decide the compatibility issue itself. It rejected the invitation that it should evaluate the quality of the consideration that Parliament was likely to give to the relevant issues under the procedure selected by the Government. That was because the directive, properly construed, did not require that particular evaluation to be carried out. I dwell on the point because I suggest that one sees in that very recent decision the system working as it should, as well as the respect due to Parliament and its procedures being properly accorded by the Supreme Court.

It is worth noting just a little more about what was said in the case of Wilson v First County Trust, in addition to the passage from the speech of the noble and learned Lord, Lord Nicholls of Birkenhead, quoted in paragraph 126 of the report. That case was decided in the early days of the development of our jurisprudence on the effect of the Human Rights Act 1998, and what was said in that case has never since been questioned. One of the questions was whether it was proper for a court to be referred to proceedings in Parliament when it had to decide a question of proportionality in relation to the convention rights. I take the liberty of referring to what I said, which was expressly agreed to by Lord Hobhouse of Woodborough. In my own speech, I said that a cautious approach was needed and that particular care must be taken not to stray beyond the search for material that will simply inform the court into the forbidden territory of questioning the proceedings in Parliament. As I put it:

“It is for Parliament alone to decide what reasons, if any, need to be given for the legislation that it enacts. The quality or sufficiency of reasons given by the promoter of the legislation is a matter for Parliament to determine, not the court”.

On the other hand, as I pointed out, proceedings in Parliament are replete with information from a whole variety of sources which are on public record, as the noble Lord, Lord Davies, said. The court would be unduly inhibited if it were to be disabled from obtaining and using this information for the strictly limited purpose of considering whether the legislation was compatible with the convention rights—that being a task which the Human Rights Act itself has given to the judges. The European court in Strasbourg might wish to do that, so our courts should feel able to do so when performing the task entrusted to them by Parliament, observing the boundary set by the case of Wilson.

I agree that questioning the conclusions of a Select Committee—that is, evaluating the quality of its conclusions or suggesting that they were in error—would be wrong. However, that is not what the passages in Wilson were contemplating. I suggest that, carefully read, that decision strikes the balance in the right place. I should add also for the avoidance of any doubt that the fact that the courts do not pay any attention to ministerial statements that the provisions of a Bill that they present to Parliament are compatible with the convention rights does not involve any infringement of parliamentary privilege. These statements in themselves are not questioned by the courts, nor is the extent to which, if at all, they are relied on in either House. They are simply disregarded as irrelevant to the task that the courts have to perform. The fact is that Ministers and the courts are performing entirely different functions, and it would be constitutionally improper for the courts to be told by the Executive what their decision on the compatibility issue should be.

For all those reasons, I welcome the Joint Committee’s conclusion that the problem is not sufficiently acute to require legislation. Of course, it is right that the freedom of speech in Parliament should be protected from judicial questioning, but I think that the risk of that happening is very slight. I think, too, that I can assure the noble Lord the Leader of the House that the justices in the Supreme Court are as anxious as anyone in Parliament that that should not happen. As for the Motion in the name of the Leader of the House, I endorse entirely what the noble Lord, Lord Brabazon, said about it.