Parliamentary Democracy and Standards in Public Life

Lord Norton of Louth Excerpts

Thursday 11th January 2024 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I congratulate the noble Baroness on initiating this debate. She raises some important questions. Parliamentary democracy is now under threat, not least as elected Governments seek to tackle problems that often go beyond their borders and with a public who respond to the failure to tackle those problems by embracing the calls of populist politicians. Some democracies, such as the United States, have a history of populist movements—a tendency now writ large—but we see it elsewhere as well, not least in some nations of Europe.

In the United Kingdom, we have largely managed, so far, to resist that trend, and the reason for that rests in the fundamental nature of our parliamentary democracy. Those calling for a codified constitution largely miss the point of what sustains the institutions of the state. Some nations have codified constitutions, but no culture of constitutionalism. By that, I mean an acceptance at mass and elite level of the legitimacy of the constitutional processes. That is what underpins the rule of law. We have a culture of constitutionalism that is so well embedded that it has facilitated our uncodified constitution and has provided stability through the fact that the constitution does not impose an unwieldy straitjacket. We benefit from a culture that has reinforced the value of that system. Some of the basic rules of society are so well ingrained that it is not necessary to enshrine them formally.

That culture still pertains, and it is essential to our well-being as a nation. If we start to move to a more formalised system, we are in danger of creating a society with some degree of rigidity. Problems with maintaining standards in public life have undermined confidence in the system, but that is an argument for recognising and bolstering the core culture, not an argument for eroding it.

Institutions matter, but in terms of public trust, the focus is on those who occupy them. We have seen some officeholders exhibit an egregious disregard of standards in recent years. We need to avoid displacement activity—advancing constitutional reform as if that is the answer—and instead we need to focus on behaviour. We need to embed a culture of responsibility and, instead of blaming our constitution, we need to be reflecting on how we recruit public officials, how we tighten the regulatory framework and how we inculcate a commitment to delivering outputs in the best interests of the nation.

Democracy Denied (DPRRC Report)

Lord Norton of Louth Excerpts

Thursday 12th January 2023 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I too welcome both excellent reports. My starting point is that good law is a public good, most law emanates from the Executive, and Parliament’s role is to ensure that the legislation that they bring forward is justified and as well drafted as it can be. We need therefore to have in place the means to scrutinise and influence legislation, be it primary or secondary; the need to ensure secondary legislation is scrutinised effectively is well made in the reports before us.

We have the means of scrutiny but we do not follow through in influencing the Executive. That is the problem, and I argue that there are two reasons for it. One is well identified in the reports before us—it is the attitude of the Executive—and the other is to be found in this House. On the first, as the Delegated Powers and Regulatory Reform Committee makes abundantly clear, the culture of the Executive is to see the delegation of legislative powers as a matter of political expediency. Ministers and officials have got so used to the convenience of employing delegated legislation that they not only neglect the fundamental principles detailed in the committee’s report but exhibit at times a rather lazy attitude to drafting. It is part and parcel of a wider attitude to Parliament, one borne in part of ignorance of Parliament.

The government response commits to the inclusion in the Guide to Making Legislation of the principles adumbrated in the committee’s report in order

“to remind departments, both ministers and officials and also the PBL Committee, of the constitutional principles underlying the relationship between Parliament and the executive.”

But why do they need reminding of something that should be ingrained as part of their culture? What is in the Government’s response is not so much a concession as an admission of a failure to comply with the provisions of Section 3(6) of the Constitutional Reform and Governance Act 2010. In replying, could my noble friend the Leader of the House explain what other steps are being taken to ensure compliance with this statutory duty?

I turn to the second part of my thesis: namely, that part of the reason lies with this House. The committees produce valuable reports, but they are toothless if the House itself is not prepared to act. There is little point giving a committee the power to bark if the House is not prepared to bite. As the noble Lord, Lord Butler of Brockwell, said in Tuesday’s Second Reading debate on the Financial Services and Markets Bill, Parliament’s reluctance to reject SIs makes such power “purely nominal”. When an SI comes before the House, we debate it but then agree to it. A regret Motion may be passed, but that constitutes an expression of opinion—one that, as far as I am aware, is invariably ignored.

A Motion to reject an SI is deemed a fatal Motion. It benefits the Executive to use such language; it is misleading. Rejecting an SI is not akin to rejecting on Second Reading a Bill that comes from the Commons. Voting down a Bill kills it for the rest of the Session; voting down an SI kills it until the next day. The Government can simply re-lay it with the odd word changed. If we were to keep rejecting it, that might be a different matter, but simply voting down an SI when first laid is akin not to rejecting a Bill but to passing an amendment and inviting the Commons to think again. Rejecting an SI is to invite the Government to think again, which they can do and, if necessary, submit a fresh SI, accepting the points made by the House. Despite what some have claimed, there is no convention that we do not reject SIs. The House has asserted its right to reject SIs and on rare occasions has done so.

We will be effective in our work in respect of delegated legislation only if we have the political will to act. We have the power. We owe it to the two committees that have reported to be willing to exercise it.

Her Majesty the Queen’s Platinum Jubilee

Lord Norton of Louth Excerpts

Thursday 26th May 2022 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I join everyone who has spoken in this debate in congratulating Her Majesty on this unique milestone.

It is important to recognise the contribution of the Queen not only to consolidating the position of the monarchy in the UK but also to national and international governance. She has consolidated the position of the monarchy as being above politics. The monarchy has moved from a position of active engagement in the political life of the nation to one of political neutrality. That has been the direction of travel since the late 19th century, but it has been achieved notably during the Queen’s long reign. Some people wonder what the point of the monarch is if she exercises no powers, but by transcending politics she has strengthened the position of the monarchy, and to the benefit of the nation. The noble Lord, Lord Janvrin, captured the position eloquently in his piece in last week’s edition of the House magazine, when he wrote that her role as head of the nation is

“being about the soul of this country”,

embodying expressing identity and national mood, providing a sense of stability and continuity to allow for and facilitate change, recognising success and achievement, and supporting the idea of service to others. She can bring people together in a way that politicians cannot.

The Queen holds prerogative powers that she exercises on advice, and powers that she exercises where she relies on convention or practice, but which serve a purpose for still vesting in the Crown. The fact that, ultimately, she could employ them is important. It is symbolically important in signifying that although Ministers exercise the powers, there remains a higher body to which they owe a duty in exercising them. Loyalty flowing to the Crown is also important for protecting our system of government. Ironically, an unelected monarch serves as the ultimate protector of the political institutions that have displaced the sovereign as the body that governs. As Gerald Kaufman said in the Queen’s Diamond Jubilee year,

“What she has done in making this United Kingdom a permanent democracy, a democracy that is impregnable, is perhaps the greatest of her many achievements”.—[Official Report, Commons, 7/3/2012; col. 862.]


Having a monarch operating above the fray of partisan conflict reflects the value of a parliamentary, as opposed to a presidential, form of government. In a presidential system, the positions of Head of State and Head of Government are vested in one person. In a parliamentary system, the Head of State and Head of Government are separate. The Head of State can thus represent the unity of the nation in a way that a partisan figure cannot. In practical terms, it also makes for a useful division of labour between the monarch, exercising essential state functions, and the Prime Minister, focusing on delivering public policy.

Her Majesty has contributed to national governance, not only by demonstrating, by virtue of holding the Crown, that Ministers have high authority—and that the loyalty of public bodies is to the Crown, not government—but also in being in practice a repository of knowledge, as has been mentioned already in this debate, able to advise successive Prime Ministers. As Tony Blair observed,

“she has got an absolutely unparalleled amount of experience of what it’s like to be at the top of a government.”

Four of her five most recent Prime Ministers had not been born when she ascended the Throne. During her reign, she has known US Presidents from Dwight Eisenhower onwards. The value of her advice has been attested to by successive Prime Ministers. She represents not only a repository of knowledge but also someone who is not a political rival. Judging from occasions when she made public utterances—again, this has been touched upon—she appears to have a knack for asking the right questions. The same would appear to apply to her meetings with Prime Ministers. As Gordon Brown recorded, her questions

“are designed to get the best out of you.”

She has contributed internationally, not only by engaging the interest of other world leaders—an invitation to the palace or to Windsor is something not likely to be turned down—but also at times by soothing tensions at Heads of Government conferences. She has also fulfilled a major role in cementing the relationship between the UK and the Republic of Ireland, as has already been touched upon, not least in her state visit to Dublin in 2011. It was, as Paul Flynn said in the other place,

“a very powerful symbol of reconciliation, which I believe will have a profound effect on healing the wounds that have disfigured life in the island of Ireland for generations.”—[Official Report, Commons, 7/3/12; col. 870.]

She is a major source of the nation’s soft power and enhances the reputation of the United Kingdom. An Ipsos MORI global survey in 2018 found that views of the Royal Family had a net beneficial impact on people’s views of Britain.

The Queen has helped shape the monarchy, being generally deft in knowing when to act and when not to act, and enhancing the position through her dedication and obvious commitment to service. It is worth remembering that she did not ask to be Queen; she was not born to be Queen. However, when circumstances beyond her control led to her becoming heir apparent and then Queen, she dedicated herself to the service of the nation as we have heard so eloquently throughout this debate. I do not know many people—indeed, anyone other than the Queen—who have served in the same job for 70 years and with such dedication.

It is entirely fitting that today we pay tribute to what the Queen has done and the contribution she has made to the life of this nation.

House of Lords: Remote Participation and Hybrid Sittings

Lord Norton of Louth Excerpts

Thursday 20th May 2021 Lords Chamber

[Lord Norton of Louth (Con) [V]]

My Lords, the sole criterion for assessing the hybrid proceedings should not be whether they have proved popular or convenient to Members, but whether they have facilitated—indeed, enhanced—the capacity of the House to fulfil its functions, primarily those of scrutinising legislation and calling the Government to account for their actions and policies.

The fact that we have managed all-Hybrid Sittings is, as we have heard, a tribute to those responsible for the technical delivery of proceedings. Without their work, the bottle of parliamentary scrutiny would be near empty. As it is, it is a quarter or a half full. Some Members of the House have generalised on the basis of it being half full. The fact that the House has been able to achieve some changes to legislation and even prevent certain provisions being pursued does not make the case for a continuation of Hybrid Sittings. When one compares performance during the pandemic with the period before, we are falling short, and by a considerable margin.

The capacity of the House to engage in detailed scrutiny has diminished as the use of prerogative and order-making powers by Ministers has expanded massively. The UCL Constitution Unit, along with other bodies, has produced a damning analysis of the situation in the other place. We are in a not dissimilar position, as is clear from the report of the Constitution Committee published on 13 May. As the committee identified, the problem is not just the sheer number of statutory instruments laid before Parliament but the use of fast-track legislative procedures and inadequate explanatory material. Scrutinising Bills and ministerial actions is made difficult by procedural limitations, by the prohibition on interventions and by our inability not only to be present in numbers in the Chamber to challenge Ministers but to meet informally outside the Chamber—essential for lobbying and information exchange. We are operating, but at a sub-par level.

The way forward, as the Constitution Committee recommends, is to engage in lesson-drawing: are there features of the Hybrid Sittings that have enhanced the capacity of the House to fulfil its functions and that may therefore be worth utilising in future? I suggest that we undertake four lesson-drawing exercises rather than one. The first is to identify any features that merit being retained when we resume meeting physically. That is the most pressing inquiry. The second is to identify features that may be utilised when we decant the Palace in preparation for the restoration and renewal programme. The third is to identify features that may be utilised as part of the R&R programme and be integral when we return to the Palace. The fourth, as the Constitution Committee identifies, is to consider how we cope if there is a future crisis and we are unable to meet physically. How can we enhance current facilities, should we need ever again to have Hybrid, or purely Virtual, Sittings?

There are thus several lesson-drawing exercises. Committees may wish to continue to utilise the power they already have to take evidence online. The ability to take evidence virtually may be built into the R&R programme. Remote working by staff may be utilised more extensively, but temporarily, during the period of decant. In all our reflections, there must be one overriding consideration: the need to restore and, if possible, enhance our capacity to scrutinise legislation and call government to account. That is how we add value to the political process; that is how we complement the elected Chamber.

Parliamentary Buildings (Restoration and Renewal) Bill

Lord Norton of Louth Excerpts

Report stage (Hansard): House of Lords
Tuesday 3rd September 2019 Lords Chamber

[Lord Haselhurst (Con)]

My Lords, I fully support the amendments on the Marshalled List, particularly Amendment 5 which refers to “facilitating improved public engagement”. I wonder whether there is still a possibility that that engagement could be other than remote. A question was asked in the other place about the possibility of access to the Elizabeth Tower for visitors when those works are completed, in a way that is independent of decant works which by then may have started or be about to start.

This leads me also to inquire whether we have closed our minds or shut the door on access to Westminster Hall. I know that there are complications but, if there were a means of allowing people to come through Westminster Hall on a particular line of route and then exit in the usual way, that would be a more meaningful way for people to engage. Those of us who have taken parties round the Palace on many occasions are impressed by the magic felt by many people, the emotional contact they may experience by being here. To lose that entirely would be a shame. Such access may be impossible in view of the works that have to take place in the Palace, but I hope that we will look at the possibility.

I am minded of what is available in the visitors’ centre on Capitol Hill in Washington where tableaux tell the story of Parliament through the ages. There is also the possibility of viewing a film. Perhaps a passage through Westminster Hall could be allowed and the Grand Committee Room—or the Westminster Hall chamber as it has become known—might also be a place where a film could show the work of Parliament and what it is all about. I hope we have not told ourselves that it cannot be done. It would be encouraging to know that this possibility is at least being investigated so that, by the time we have to decant from the building, there might still be an opportunity for something more than remote access for members of the public.

[Lord Norton of Louth (Con)]

My Lords, I add my thanks to my noble friend Lord Howe for the amendments and place on record my thanks to the noble Lord, Lord Blunkett, for all the work he has done on securing these amendments. They are extremely important—in particular, as my noble friend Lord Haselhurst would add, Amendment 5.

This might be the Parliamentary Buildings (Restoration and Renewal) Bill, but we and the sponsor body need to look at it as the Parliament restoration and renewal Bill. It is not simply a case of bricks and mortar; it is about the space and how it is employed for the future. Picking up on what my noble friend said, it needs to be adaptable space. That is the point that needs to be put over to the sponsor body: not only should we use the space in the way indicated by my noble friend but there are going to be changes that we cannot anticipate in the way that we might want to use it. This place was designed originally to accommodate meetings in committee rooms dealing with private Bills. That did not take into account how Parliament would evolve, particularly as a public body. We cannot anticipate all the needs in future, so adaptability is going to be a clear theme.

I reiterate the point that the space can be used to connect with people outside. That is a crucial point that has already been stressed. We need not only to educate but to be able to engage. That would play to the strengths of this House in particular, but the institution of Parliament as a whole needs to be able to connect with people outside in different ways, including in ways that, as I say, we might not able to anticipate at the moment—so we need to have that space available but not rigid.

So we need to be outward-looking and adaptable. I reiterate my thanks to the noble Lord, Lord Blunkett, for all the work he has done on this. I was delighted with the agreement that was reached with the Government, so I very much support the amendments before us.

Palace of Westminster: Restoration and Renewal

Lord Norton of Louth Excerpts

Tuesday 6th February 2018 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, like other noble Lords, I was pleased and relieved by the Motion approved by the House of Commons last week and I welcome the Motion before us. Like my noble friend Lord Inglewood and many others, I regret how long it has taken to put the Motion before both Houses.

In the time available I wish to make three points focusing on paragraphs 4, 8 and 7 in that order. The first is straightforward, and that is to follow the vast majority of those who have spoken in endorsing the decision for a full decant and to emphasise the need to move as expeditiously as possible. The delay in making a decision has added millions to the cost. The charge to the public purse of maintenance and repairs over the next five years is estimated at over £440 million. By the time we leave, on the figures we have been given, it is likely to be over half a billion pounds. The repairs that are necessary to keep the Palace running are making the place an eyesore rather than a shining edifice of which we can be proud. One cannot now show visitors around without having to negotiate some screened-off section of a corridor or some scaffolding.

To pursue the “do nothing” option would be grossly irresponsible. As we have heard, the dangers are too great. It is also not a cost-free option given the sheer expense of maintenance and repair. Of the other options detailed in the various reports, it is important to stress that all of them entail moving out of this Chamber for some time. Even the rolling programme option would entail moving out for some years.

We might recognise the distinction between the two Chambers but, as several noble Lords have mentioned, the wiring and the pipes do not. Trying to hold Sessions in what would be a building site would constrain the work and be a health as well as a security hazard. Even if Members wish to remain on site, we really cannot expect our staff to do so. More than 7,000 people work in Parliament. They do not get a vote in this, but we have a duty of care to them. I am not prepared to vote in such a way that may put them, and indeed our visitors, at risk.

My second point is to draw attention to and endorse the requirements stipulated in paragraph 8. That should reassure those who are worried about whether we return or not. We need to move out and we need then to move back in. All the plans are predicated on that and this will be enshrined in legislation. We need to deal with the various suggestions, embraced by one or two speakers today, that we should move out permanently and Parliament be located somewhere else in the country. There are two obvious problems with this, one political and the other financial. Parliament is where it is because government is where it is. If we move to another part of the country, government will have to move as well.

We could create our own Bonn or Brasilia, but the problem with that is the cost of creating new buildings and relocating thousands of civil servants and parliamentary staff. It would have to be created at enormous expense in addition to restoring and renewing the Palace of Westminster. The Palace is a world heritage site and cannot be neglected. Returning to the Palace, then, is necessary politically and is inescapable from the perspective of cost. I fear that we will not be heading off to Birmingham or, indeed, Hull. If we were starting from scratch or dripping in enormous wealth, it might be different.

My third point is that there has to be an effective delivery authority and, as drawn out in the report of the Public Accounts Committee, good governance. In replying, perhaps my noble friend could say more as to when the legislation to establish the sponsor board and delivery authority will be introduced and what form the board will take. We need to ensure value for money, but—as has been stressed—we need also to avoid interference in operational matters by parliamentarians. We need to set the policy, but we need a delivery authority of the sort that delivered Crossrail and the Olympics. As the PAC also noted, there needs to be external assurance within the programme, alongside the creation of an audit committee. It is also important, as it said, that the National Audit Office is empowered to audit the delivery authority and to carry out value for money studies. Perhaps my noble friend can confirm that this will be the case.

The message from this debate is quite clear. The sooner we get on and legislate the better. Churchill had an appropriate phrase: “Action this day”.

House of Lords: Size

Lord Norton of Louth Excerpts

Monday 5th December 2016 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, this has been a very good debate, and an important one. It is not an exercise in navel-gazing; it matters because this House matters. Addressing size is only part, but a necessary one, of what needs to be done to protect and enhance the role of this House as a valuable—and, I would argue, invaluable—second Chamber. This House adds value and, contrary to what some have said, is justifiable in democratic terms. Democracy—demos kratia—is about how people choose to govern themselves. In a representative democracy, the choice of who is to govern is fundamental. In the United Kingdom, we choose a Government through elections to the House of Commons, a Government who are responsible for a programme of public policy and accountable for that policy to the electors at the next election. There is core accountability. We have the benefit of a second Chamber that fulfils tasks that add value to the political process without challenging that core accountability. As my colleague Professor Colin Tyler, a specialist in democratic theory, put it in evidence to the Joint Committee on the Draft House of Lords Reform Bill, if you “divide sovereignty within Parliament”, you undermine the capacity of Parliament to give effect to the will of the people.

We have a Chamber that draws on experience and expertise to complement the work of the elected House. By general consent, this House does a good job. Debate about Lords reform focuses primarily on composition, not on functions—there is a general agreement about the functions of a complementary second Chamber. The House of Lords Reform Bill in 2012 was premised on the House continuing to do its existing job. But of course composition and functions are intrinsically linked; who is in the House determines how effectively the functions are fulfilled. We are a legitimate Chamber, but whereas the Commons takes its legitimacy for granted through election, our legitimacy has to be earned through the work that we do. We therefore need to ensure that we are working effectively and efficiently; we need to ensure that the quality of what we do is maintained.

We know from the Ipsos MORI poll of 2007 that electors considered the two most important factors in determining the legitimacy of this House to be trust in the appointments process and in considering legislation carefully and in detail. Seventy-six per cent considered trust in the appointments process to be very important, while 73% thought the same for considering legislation carefully and in detail. Some element of election came way below.

It is three years almost to the day since I initiated a debate on the size of the House. It was clear then that there was a problem; the problem is even greater now. As we have heard, of legislative chambers that meet regularly throughout the year, we are the largest. It is true that the Chinese National People’s Congress has more Members, but it meets for only about two weeks each year. It is true that we have a smaller membership than existed prior to the 1999 Act; the difference is in terms of activity and perception. There is a justified expectation now that those created as Peers should contribute to the work of the House. The level of activity places a burden on the resources of the House, and on the public purse. Any inactivity reflects badly on the House, since we appear to be carrying passengers. So either way there is a problem.

We need to address size, which necessarily entails not only reducing numbers but also, as we have heard, controlling future appointments. That is where public perception becomes important. Some noble Lords appear to say that this is not too important: it is only perception. We do not exist in a vacuum. The more we grow in number, the more the media draw attention to our size, whatever good work we do. Indeed, as we have heard, that coverage masks the work of this House: that is the reality. New creations will be pored over by the media to see if someone has been a party donor. It only takes one for the media to generalise about the whole. Whatever we say, that will remain the case. We therefore need to move from deprecating such activity—or simply ignoring it—to doing something practical about it, hence this Motion and the recognition that action needs to be taken.

It is quite clear from this debate what that action needs to be. We need to establish a Select Committee to address the various options for reducing the size of the House. As has been stressed, we cannot resolve what the precise action is in a single debate such as this. The noble Lord, Lord Anderson, seemed to think that the committee may not reach agreement and that was, therefore, an argument for not having a committee. If there is going to be a committee with a majority and minority view, I would rather have that than no committee at all. It can come forward with recommendations. The sooner we get under way and the sooner the committee reports, the better. It need not be a lengthy exercise. It may not succeed, but it is an essential start. I am delighted that my noble friend the Leader of the House is to reply. I trust that she will acknowledge that this is not a parochial issue. It is about ensuring that this nation’s constitutional arrangements benefit it. I end as I began: addressing size is only part of what needs to be done, but it is a necessary part. Let us get on with it and then address what else needs to be done.

[Lord Newby (LD)]

My Lords, I have no difficulty in agreeing with the Motion before your Lordships’ House. I am therefore extremely tempted to follow the advice of the noble Lord, Lord Forsyth, to the noble and learned Lord, Lord Hope, and sit down now. Sadly for him, and for the House, he is not going to be so lucky.

I start with an admission. In a previous incarnation I was responsible, albeit to a modest extent, for increasing the size of your Lordships’ House. When I was chief of staff to Charles Kennedy, we got a proposal from the then Prime Minister, Tony Blair, about a very modest increase in the number of Liberal Democrat Peers. We objected to it, on the grounds that it was modest, and we would rather like a few more. We tried to find out what the other parties were getting but were told that that was completely improper and we could not be told. We said that unless we got a few more we were not going to agree to anything. There was a great deal of huffing and puffing but, to cut a long story short, we ended up with 60% more than had been on the original note. This was haggling about the composition of a legislature in one of the world’s largest countries. This process was, and remains, ridiculous and unsustainable in the long term.

As my noble friends Lord Tyler and Lord Rennard have set out, my party has had a long-standing policy to elect people to your Lordships’ House and, in the process, reduce the number of Members. We believe that in a democracy legitimate power and political authority ultimately derive from the people. In the 21st century, and in a modern innovative country such as ours, it is simply wrong that the public never have the opportunity to vote for Members of this House or to hold us to account on our record. Members of this House are, individually and collectively, legislators. It is straightforward that we should be accountable, through elections, to those whom we expect to follow the laws which we enact. A number of noble Lords, including the noble Lord, Lord Foulkes, and the noble Earl, Lord Caithness, have made a point about regional representation in your Lordships’ House which strengthens this argument. As long as we have the current system there will be a predominance of people from London and the south-east in your Lordships’ House. There is a lot of talk about rebalancing the economy and the northern powerhouse, but the northern regions are not fully represented in your Lordships’ House. Until they are, any sense of political rebalancing in terms of the balance of arguments in Parliament simply will not happen. Regional elections would help to redress that balance.

It is also worth pointing out that every other second Chamber in the world, I think, except possibly the Council of Elders in Papua New Guinea, is elected. Although they may all be wrong, and we may be—

[Lord Norton of Louth]

Sixteen Chambers are wholly appointed.

[Lord Newby]

I stand corrected. I had better be careful because the noble Lord will correct what I am about to say, but I believe that many countries have more than one Chamber and that a minority, at best, have a non-elected second Chamber.

[Lord Norton of Louth]

That is true of wholly elected Chambers; they are in a minority as well. No one model is in an absolute majority.

Government and Parliament

Lord Norton of Louth Excerpts

Thursday 9th June 2016 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, like other noble Lords, I welcome this timely debate initiated by the noble Baroness, Lady Smith of Basildon. There is much that needs to be done to strengthen Parliament in scrutinising the Executive and their legislation. However, before addressing what is wrong with the process, I will just say a few words about what is right with it.

Parliament is now arguably at its strongest in modern political history in scrutinising the Executive. MPs are much more independent in their voting behaviour. Both Houses are much more specialised, utilising investigative Select Committees, and better informed as well as more open. Government no longer has a stranglehold on the timetable in the Commons. The House has acquired the Backbench Business Committee and a Petitions Committee. The Whips in the Commons have lost their patronage in terms of the chairs and members of Select Committees. The prerogative power in committing forces abroad is now constrained by the need for Commons approval.

In terms of legislative scrutiny, the Commons, as Louise Thompson’s research has shown, has far more impact than is reflected in the small number of non-government amendments accepted. The Commons has introduced Public Bill Committees, and in this House we now utilise ad hoc committees for important post-legislative scrutiny, a development that plays very much to our strengths. This House is to the fore in scrutiny of secondary legislation. The Constitution Committee does excellent work in reporting on Bills of constitutional significance.

There is thus good news. What, then, is the problem? The primary problem is the sheer volume of legislation. The growth in the volume, both of Acts and statutory instruments, dates from the 1990s, with the greatest increase taking place in the number of pages of statutory instruments—it is not numbers, it is length. There were two step changes, first in the 1990s and then from 2005 onwards. The problem is qualitative as well as quantitative: it is not just the length, but also the complexity and scope. The noble and learned Lord, Lord Judge, has called attention to the growth of Henry VIII provisions. Governments are trying to do too much and seek to manipulate the legislative process to achieve their goals.

The Constitution Committee, in its 2004 report Parliament and the Legislative Process, looked at the legislative process holistically. It made the case for pre-legislative scrutiny to be the norm, which fits very much with the wording of today’s Motion. There was a notable increase in the number of Bills submitted for pre-legislative scrutiny in the last Parliament, but the number has varied over time and remains reliant on the Government to determine which of their own Bills merit such scrutiny.

The committee also made other recommendations of relevance to the Motion today. It recommended that all Bills should be subject at some point to detailed examination by a parliamentary committee empowered to take evidence. Government Bills starting life in the Commons now go to evidence-taking Public Bill Committees, although Bills introduced in this House do not get sent to an evidence-taking committee, either here or in the other place. The Committee also recommended that Explanatory Notes should set out clearly the purpose of the Bill and how it should be judged in future to have achieved its purpose. That would be very good discipline on government. Linked to that, as the noble Lord, Lord Butler, has said, there is a case for a legislative standards committee to ensure that Bills brought forward by a Government meet set standards and that the check is undertaken in Parliament and not solely by government.

The problem, however, is writ large with secondary legislation. As the Hansard Society observed in its report on Parliament and delegated legislation:

“the use of delegated legislation by successive governments has increasingly drifted into areas of principle and policy rather than the regulation of administrative procedures and technical areas of operational detail”.

That is why secondary legislation is presently on the political agenda, but it is important to understand the cause of the mischief. The report of my noble friend Lord Strathclyde addressed the symptom and not the cause, and in any event was based on a false premise. Indeed, it opened by defining the convention and then proceeded to ignore it. It is not clear why this House should be penalised for the Government using secondary legislation for purposes for which it was not intended. The Government are in effect saying, “We wanted to use secondary legislation to achieve policy goals without sustained parliamentary scrutiny, and we intend to legislate to try to restrict the House of Lords in order that we can do so in future without challenge”.

The noble Lord, Lord Cunningham, has already quoted the Public Administration and Constitutional Affairs Committee in the other place, which concluded:

“Such legislation would be an overreaction and entirely disproportionate to the House of Lords’ legitimate exercise of a power that even Lord Strathclyde has admitted is rarely used”.

The Government should be reviewing their own procedures. Can my noble friend the Leader of the House tell us what the Government are doing to ensure that departments do not misuse delegated legislation and what constraints they plan to introduce to ensure statutory instruments do not drift into areas of principle and policy? Those are the questions we should be addressing. We should not be distracted by the Government’s attempts to blame this House for their own failings.

There is a lot that we need to do. We should acknowledge what has already been achieved—we are much stronger than many realise—but we need to build on that and ensure that Parliament is truly effective in calling government to account. The bottle of parliamentary scrutiny may be filling up, but there is still an awful long way to go.

Strathclyde Review

Lord Norton of Louth Excerpts

Wednesday 13th January 2016 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, the review undertaken by my noble friend Lord Strathclyde may be pointing us in a direction that is worth pursuing, but for very different reasons from those advanced by my noble friend and not in the way recommended in his report. Our debate, following my noble friend’s report, has tended to focus on whether the House, by its vote on 26 October, broke a convention of the constitution. We are in danger of getting into a muddle. There has been no attempt to define what we mean by “convention”. The Joint Committee on Conventions did not offer a definition. My noble friend in his report offers a definition that is not incorrect, but it is incomplete.

There is much misunderstanding of what we mean by constitutional convention. Conventions are non-legal rules that determine a consistent, indeed invariable, pattern of behaviour. Those who comply with them do so because they accept that they are, as David Feldman has cogently expressed it, “right behaviour”. Conventions do not become such by the words of a particular person, be it Viscount Cranborne in 1945 or Lord Sewel in 1998. They are not created, but develop. A convention exists once there is an invariable practice. Kenneth Wheare distinguished between conventions and usage—in effect, a distinction between invariable and usual practice. The Cranborne doctrine of 1945 developed into the Salisbury convention. The statement of Lord Sewel developed into a convention named after him, even though the convention is such only by departing from the words that he used. It is a convention because seeking a legislative consent Motion is an invariable practice.

It is our usual practice not to withhold agreement to statutory instruments, but it is not our invariable practice. As we have heard, the House has asserted its right to reject statutory instruments and has on occasion exercised it. This House therefore does not regard itself as bound, and has not been bound, by a moral imperative that we should not reject statutory instruments. So long as that is the case, there is no convention. The Joint Committee got itself into something of a confusion on this issue, partly because of a failure to define conventions, but it recognised that no convention was breached if the House defeated a statutory instrument. As it reported at paragraph 228:

“The Government appear to consider that any defeat of an SI by the Lords is a breach of convention. We disagree”.

The fact that there is no convention is borne out by the words of my noble friend in the course of asserting that there is. My noble friend’s report states on page 15:

“The convention that the House of Lords should not, or should not regularly, reject SIs is longstanding but has been interpreted in different ways, has not been understood by all, and has never been accepted by some members of the House”.

The very wording draws attention to the absence of any agreement on what this supposed convention constitutes. Some Members, like my noble friend, may believe that there is a convention but, for it to be one, Members generally have to consider themselves bound not to vote down SIs. There is no such acceptance by the House. There was thus no breach of convention in respect of how this House deals with statutory instruments. That was not the problem. The problem derives from the fact that we exercised our power in respect of a statutory instrument that engaged the financial privilege of the Commons. The key section of my noble friend’s report is to be found on pages 21 and 22. That should have been the focus of his report. As my noble friend recognises, there is nothing to stop us developing procedures particular to delegated legislation that cover financial privilege.

I am not against reviewing our powers in respect of statutory instruments, but I take the view that if our powers in respect of delegated legislation are to be restricted, the powers should at least be analogous to those provided in the Parliament Acts in respect of primary legislation. My noble friend’s recommendation in favour of option 3 claims on page 18 that it is, but then admits, on page 20, that it is not, since there would be no suspensory veto. If we are to go down the route recommended by my noble friend, there needs to be something else built into the procedure to ensure that the reasons for objecting to an SI are taken seriously. I therefore endorse what several others noble Lords have argued—in other words, what may be termed option 3 plus.

In short, while I think that my noble friend’s report has come up with some stimulating proposals, it derives from a false premise and comes up with recommendations not geared to the mischief that prompted my noble friend’s inquiry. In the short term, there is a case for acting in respect of SIs that engage the Commons supremacy in respect of tax and spending. In the longer term, as several noble Lords have said today, there is a case for a substantial review of how we deal with statutory instruments. We have had recommendations from the Wakeham commission and the Goodlad committee. There is also a report on the subject produced by the Hansard Society, which has made the case for revisiting how Parliament as a whole deals with secondary legislation, recognising the limitations of the other place. Rather than a rushed quick fix, a more holistic approach is the way forward.

House of Lords Reform

Lord Norton of Louth Excerpts

Tuesday 15th September 2015 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I wish to address three points based on the four Motions before us. The first is on the purpose of reform. I very much welcome the Motion moved by my noble friend the Leader of the House. She quite rightly stresses the importance of incremental reform. There is general acceptance in the House that we should undertake such reform to address the size of the House. The acceptance is, in many respects, a starting point in our consideration. We accept the need for it but are in danger of avoiding the reasoning behind it. Why do we undertake reform? We need to have a clear understanding of the qualitatively distinctive role of the House and the justification for it; only then can we establish what needs to be done to ensure that we are doing our job as effectively as we can. The House of Commons indulges in the politics of assertion. This House engages in the politics of justification. We need to protect that. Our work rests, as with much of the British constitution, on a series of understandings. We could begin by recognising what they are and drawing them together. That would in essence establish the foundations of this House’s role in the political system.

The size of the House can be located within this wider context. Having a larger membership creates problems for the efficient functioning of the House and in how it is perceived by the media and the public. It is necessary that we address it and I initiated a debate on it last year. However, we must not lose sight of the fact that while such reform is necessary it is not sufficient. A smaller House may increase our efficiency, but we need to look not just at the size of the House but also at the process by which Members are appointed.

My second point relates very much to the Motion tabled by the noble Lord, Lord Lea of Crondall. There is public disquiet at the size of the House, but the legitimacy of the House in the eyes of the public rests as much on the process of appointment as it does on how many Peers sit in the House. The 2007 Ipsos MORI poll of public attitudes to this House found that the factor deemed most important in determining the legitimacy of the House was trust in the appointments process. Some 25% of those questioned deemed it important; 70% deemed it very important. Next in ranking was the process of detailed legislative scrutiny. We need to look therefore at the appointments process, implementing the provisions of the Steel Bill by putting the Appointments Commission on a statutory basis, raising the threshold for appointment and making the whole process more transparent.

My third point relates to the other two Motions before us in the names of the noble Lords, Lord Steel of Aikwood and Lord Pearson of Rannoch. As we have heard this afternoon there are various proposals for reducing the size of the House. The point to stress, and it has come over in a number of speeches, is that they are not mutually exclusive. One could have an age limit, as we have heard, but one may need to think about other reforms as well. Indeed, I argue that we have to. An age limit is effective but, as we have heard, it is arbitrary and does not deal with the party-political conundrum highlighted by the Motion of the noble Lord, Lord Pearson. As we have heard, one can get fluctuations in party support, sometimes quite significant ones as we saw in May’s general election. One may get alternation of parties in office, with each incoming Government wanting to boost their numbers. We may need therefore to consider a more subtle means of adjusting numbers than is possible through an age limit. One possibility is to consider a formula whereby following an election each party is allocated a number of Members based on the party’s support in the election, be it in terms of votes or seats or arguably, following the line of my noble friend Lord Jopling, a combination of the two, with say 90% of the Members being elected by the party group in the House and the remaining 10% in the gift of the party leader. That is one possibility, but it is to be considered alongside and not necessarily instead of the others put forward.

We have a track record of achieving change. The obstacle to achieving legislative reform has not been this House, but rather successive Governments, who have had to be pressed to agree to the reforms we favour getting on to the statute book. Major reform has failed not in this House, but in the Commons. We have the political will to achieve change. We should articulate our role and the understandings that sustain it and then agree on what needs to be done to ensure that we are as effective as we can be. We cannot afford to miss the opportunity, but let us make sure we do not fixate on just one part of what needs to be done. Our starting point should be not size, but purpose.