Strathclyde Review

Lord Lisvane Excerpts

Wednesday 13th January 2016 Lords Chamber

[Lord Lisvane (CB)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Goodlad, whose 2011 report—particularly at about paragraph 154 in the context of today’s debate—is a source of great wisdom. The report of the noble Lord, Lord Strathclyde, is technically an excellent piece of work. I say this not merely because he has been kind enough to refer in it to two works in which I myself had a hand. I cannot fault his description of the constitutional background and the procedural arrangements. He has been very well served by his team of expert advisers, all of whom I know well and have worked with, and for whom I have the very greatest respect.

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

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

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

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

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

Option 3, the recommended outcome, has some attractions, although of course it does not guarantee a proper debate at the Commons second stage—a point raised by a number of noble Lords. And it is not without hazard. In the context of Article 9 of the Bill of Rights, I have an instinctive dislike of legislating for proceedings in Parliament. There is a more immediate hazard—and here I take the timely warnings of the noble Lord, Lord Crickhowell—because the scope of a Bill, and the relevance of amendments to it, is determined not by the Long Title but by what is actually in the Bill. I do not think anybody can guarantee that there could not be in the Commons more wide-ranging amendment of the noble Lord’s apparently simple proposition—and then where should we be?

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

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

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

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

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

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

House of Lords: Strathclyde Review

Lord Lisvane Excerpts

Thursday 3rd December 2015 Lords Chamber

[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

Proposed Changes to the Standing Orders of the House of Commons

Lord Lisvane Excerpts

Tuesday 21st July 2015 Lords Chamber

[Lord Wigley (PC)]

My Lords, it would be perverse of me not to say that I have every sympathy with English votes for English laws. After all, I want Welsh votes for Welsh laws, and on that basis quite clearly the same should apply for England. However, with regard to the provisions being put forward by the Government, there are questions relating to Wales that have just not been answered. The most fundamental question has to do with the financial implications of the Barnett formula. We had Acts in the last Parliament that were supposed to be England-only, such as the Health and Social Care Act 2012. We are told that 99% of health is totally devolved, yet that Act had a negative effect of £11 million on my local health authority. Because of the way the Barnett formula works, issues arise with regard to cross-border communications between Wales and England.

Quite frankly, these proposals do not start to answer the fundamental questions. If we accept that there will not be independence for Scotland or Wales, certainly within this Parliament, what stable, ongoing constitutional settlement will be able to meet the reasonable aspirations of people in Wales, Scotland and Northern Ireland but also deliver the English votes for English laws proposal that the Government have in their manifesto? One needs to get the answer right in the long term, not just apply bits of sticking plaster. I am quite prepared to look at any proposals that the Government put forward to move in the right direction on this, but I beg that the Government, and indeed all parties, try to find that long-term stable solution, rather than short-term expediency.

[Lord Lisvane (CB)]

I support the Motion in the name of my noble friend. Comity—a relationship of mutual respect between the two Houses—is extremely important, as the noble Lord, Lord Wakeham, has pointed out with his customary wisdom. It is therefore equally important that this Motion is seen not as an attempt to interfere with the Standing Orders of the House of Commons but as a means of examining a constitutional problem, to which what has been proposed is only one possible solution. It is a very complex solution—a complexity to which I have fallen victim—for which I must apologise to your Lordships.

When I spoke during the QSD last week, I said that, were this House to change an English-only certified provision into a UK-wide provision, it would go back to the Commons, escape certification and be subject to a different procedure, which might produce a different outcome. However, I hope your Lordships will forgive my error on just a minor point of detail. I had reckoned without proposed Standing Order No. 83O(4), which says that if this House turns an England-only or England and Wales-only provision into a UK-wide one, the Speaker must still certify it as being an England-only or England and Wales-only provision. To take an extreme example, if your Lordships inserted acres of Scottish provisions into a certified England-only clause, that amendment would be subject to the England-only procedure when it reached the Commons and a majority of English MPs would be required in order to approve it. That seems a little counterintuitive and it may come as a surprise to some. However, it does seem to me an example of the sort of thing that a Joint Committee could tease out in its implications.

Finally, if the Standing Orders route is chosen, it is possible that the courts may become involved, because although Article 9 should be a protection, if the Speaker is to be invited for the first time to rule on an objective matter of law, as the noble and learned Lord, Lord Wallace of Tankerness, pointed out, that is a hazard. If the legislative route is chosen, it would be possible to put in an ouster clause to say that the Speaker’s actions were not justiciable in any court, but that might not be a foolproof device. On the Anisminic precedent, which noble and learned Lords know much more about than I do, a court might still have a locus. Either outcome would still be of concern to this House just as much as to the House of Commons—so that aspect of jointery becomes very important. But careful analysis and firm conclusions by a Joint Committee might well discourage a court from going down a highly experimental route.

I understand the Government’s wish to press ahead with speed. However, I suspect that they may find a Joint Committee with the early out-date suggested by my noble friend useful insurance and, perhaps, in the outcome, not altogether inconvenient.

English Votes for English Laws

Lord Lisvane Excerpts

Thursday 16th July 2015 Lords Chamber

[Lord Lisvane (CB)]

My Lords, the Leader of the House told us on 2 July that this issue was fundamentally a domestic one for the House of Commons. Might I very respectfully disagree with her for three reasons? First, as my noble friend Lord Butler said, this is fundamentally a constitutional problem. It is simply that one of the possible solutions to that problem has been presented in terms of changes—extraordinarily complex changes—to Commons Standing Orders.

Secondly, the amendments made by this House will be subject to certification by the Speaker of the Commons, so what we send back may influence the outcome. For example, it will be possible for this House to turn an English-only provision into a UK-wide one, thus avoiding certification and possibly affecting the outcome.

Thirdly, although I hope I am wrong, I see a possible hazard to Article 9 of the Bill of Rights. For the first time, a Speaker of the House of Commons will be asked to certify something that is a matter of law, whether it is within the legislative competence of devolved institutions to make provision for this or for that. This is wholly different from Parliament Act or money Bill certifications.

The Speaker and parliamentary proceedings would be better protected by ministerial certification along the lines of a Human Rights Act certification of a Bill. The possibility of any inroad by the courts into the exclusive cognisance of Parliament is emphatically a matter for both Houses. I should say in passing that those who argued for this to be done by legislation rather than by Standing Orders are going down a very dangerous road. In my view, nothing would bring the courts into Parliament faster than making this arrangement explicitly justiciable through legislation.

My learned predecessor, Sir William McKay—like the noble Lord, Lord Tyler, I gave evidence to his commission—recommended in effect an English legislative consent Motion. That was a very shrewd recommendation because LCMs are animals well known to science. An advisory LCM would have avoided any charge of creating two classes of MP. It might have been possible for the McKay solution to be a first step, later ratcheted up if necessary. It is much more difficult to ratchet down, and of course expectations may already have been raised too high.

We are too tightly constrained for time today and this does argue for a full debate before long. I thoroughly agree that a Joint Committee is emphatically the right way to tackle a major constitutional issue, which is rightly of such interest to both Houses, as it might offer the possibility of some informed consensus, which, at the moment, is rather far to seek.