Government and Parliament

Baroness Smith of Basildon Excerpts

Thursday 9th June 2016 Lords Chamber

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[Baroness Smith of Basildon]

That this House takes note of the balance of power between the Government and Parliament; and of the case for Parliament having full details of all legislation that it is asked to consider.

[Baroness Smith of Basildon (Lab)]

My Lords, when I was preparing my comments for the Queen’s Speech, I found myself reflecting on the past Session as much as thinking about the next. When we debated the Queen’s Speech, it became very clear that there were different interpretations of one particular highly significant sentence:

“My Ministers will uphold the sovereignty of Parliament and the primacy of the House of Commons”.

In two excellent contributions in the debate that followed, the noble Lord, Lord Butler of Brockwell, considered that that might have been a cryptic reference to the Strathclyde review, and the noble Lord, Lord Lisvane, referred to it as a shot across the bows of your Lordships’ House.

I try to take a more generous view. Surely, what we had here was a Government making it clear that Parliament, not the Executive, is sovereign, and that the House of Commons has primacy over your Lordships’ House—something about which I am not aware that there was ever any doubt. So it is easy to agree with both those statements, and I warmly welcome them.

But I suspect that the concerns of the noble Lords, Lord Lisvane and Lord Butler, were not misplaced. Clearly, this Government have not welcomed challenge from your Lordships’ House. In some ways, that is understandable, because this is the first Conservative Government in history not to have had an automatic majority in your Lordships’ House. It is worth noting at this point that no Labour Government have ever had a majority in your Lordships’ House, so we understand that this is frustrating and we understand the challenges. Perhaps, as we reflect on the past Session, we should recognise that we are all adjusting to that new and very different situation. We now have an opportunity to reflect on our role, our work and how we manage our current circumstances.

There are two easy and unsatisfactory ways of addressing this. The first is for the Opposition to always vote against the Government, come what may. I have already shown that on this side of the House, as the Official Opposition, we do not think that that is responsible or productive, or in keeping with the conventions of your Lordships’ House. The other easy and unsatisfactory way is for the Government to continue to appoint more government Peers to an ever-growing House. Likewise, that is not a measure that we consider responsible, productive or in keeping with the conventions of your Lordships’ House. We are a responsible, challenging Opposition, fulfilling our constitutional role.

I want to place on record that we welcome those Ministers who have engaged constructively, who have been prepared to take on board suggested amendments and who have offered concessions. That is good government and it makes for good legislation. We also welcome the way in which the House as a whole has wanted to consider the detail of difficult legislation. Noble Lords will recall that we proposed a Select Committee to examine the most controversial clauses of the Trade Union Bill and assist in consideration of the detail. That committee ran parallel to the Bill and did not delay our normal proceedings. That was a sensible, pragmatic approach. Even noble Lords who were initially uncertain about the process now consider that that was a helpful and productive way forward.

Even on the votes on the tax credits SIs, the amendment from my noble friend Lady Hollis provided the Government with the time and space to reconsider their position—which they did, and for which this House was very appreciative.

I also want to take a deeper look at how we consider legislation coherently and constructively. That is the purpose of our Motion today. In the previous Session, we received a number of Bills that were, quite frankly, half-baked. They had inadequate detail and insufficient financial information, and far too much was left to regulation. We saw this in the Childcare Bill, the Cities and Devolution Bill and the Energy Bill, and there were a number of others. On the Trade Union Bill, we did not even have the impact assessment until after Second Reading, by which time the Bill had completed all its stages in the House of Commons. As for the Housing and Planning Bill, as the noble and learned Lord, Lord Judge, said in the debate on the Queen’s Speech:

“I listened as a Bill was debated that consisted of a whole series of almost blank pages. Metaphorically speaking, there was nothing to be debated”.—[Official Report, 24/5/16; col. 315.]

The Select Committee on the Constitution has noted a trend whereby, to quote from its report,

“delegated legislation has increasingly been used to address issues of policy and principle, rather than to manage administrative and technical changes”.

Similar concerns were identified by the Delegated Powers Committee.

In the first term of a Government, it is understandable, even if it is not acceptable, that some legislation that is brought forward is not fully formed, but the trend towards not providing adequate details for Bills is continuing into this Session of Parliament. In both the Children and Social Work Bill and the Bus Services Bill, there are more provisions for the Secretary of State to use regulations than there are clauses in the Bill, including on issues that should be considered matters of significant policy. My noble friend and former Leader of the House Lord Richard summed it up in the debate on the Queen’s Speech when he said:

“If the Government continue to produce skeleton Bills, they should not be too surprised about the vigour with which this House then approaches the regulations made under them”.—[Official Report, 24/5/16; col. 310.]

Another example of this increasing trend to policy-making by regulation was in the votes on tax credits. The view that this policy change should be more appropriately tabled as primary legislation was widespread across Parliament. It was that debate that led to the review and report of the noble Lord, Lord Strathclyde, which has recommended curtailing the powers of your Lordships’ House—yet all three committees of this House and the Commons committee that considered his report were chaired by members of the government party, were all critical and all declined to support the noble Lord’s recommendations.

Perhaps the Government’s position to seek to restrict even the limited scrutiny we have of SIs is better understood if a report in the Financial Times about greater government use of SIs is accurate. Written by two highly respected journalists, it quotes one political aide as saying:

“We are being told to use statutory instruments wherever possible to get legislation through”.

It also quoted an unnamed senior Tory as saying:

“‘The House of Lords has to tread carefully … If they don’t accept this proposal, we could stop them having any say at all on secondary legislation. That’s a big bazooka’”.

I do not know who uses that kind of language. Why would a Government seek to increase the use of SIs? Would it be to evade deeper scrutiny, or is it because policy is still being developed, so proposals are light in detail? Or is it that non-amendable regulations are easier to get through both Houses?

The Leader of the House has said that the Government need certainty in getting their legislation through. I have to say to her that certainty in politics is a luxury. Rather than examining how to curtail scrutiny to provide such certainty, perhaps a better way forward would be to ensure that legislation introduced in your Lordships’ House was fit for purpose in the first place. It should be well drafted, with adequate detail from informed debate and decisions.

No Government should be able to claim that they are right all the time, every time. This House is part of the checks and balances of our political system. We have a constitutional role to fulfil to undertake that remit. I hope that Ministers will have recognised from our deliberations on legislation in the past Session that the frustrations of this House are not just about policy; they are often about lack of detail, lack of information, the quality of drafting and Ministers being unable to provide comprehensive, detailed answers on policy matters. The role of this House is important in the process of good scrutiny and challenge, but we need the tools to do the job properly.

I greatly welcome the Leader’s recognition during the debate on the Queen’s Speech. She said:

“Every Minister will agree that their Bill is better for the scrutiny it receives here”.—[Official Report, 18/5/15; col. 24.]

Responsible opposition requires responsible government, and responsible government means that details of what is being debated—that is, impact assessments, financial reports and relevant information—should be available when Bills are considered, even if that detail will be voted on only when we see the regulations further down the line.

So we have given some thought to what might be a sensible and productive way forward. It would be inappropriate to accept the proposals of the noble Lord, Lord Strathclyde, to limit your Lordships’ ability to consider secondary legislation at a time when statutory instruments are growing in number and significance. A preferred way forward would be a more considered, less partisan and less defensive approach to how we as a House can best support good legislation. A number of suggestions have already been referred to and commented on by our committees that reported on Strathclyde and by noble Lords who have considered this issue.

I want to highlight three of them. The first is Ministers abiding by Cabinet Office guidance on legislation—and that includes the availability of full impact assessments prior to Second Reading debates. Secondly, we should ensure that draft regulations should in most cases be available prior to Committee and always prior to Report. Thirdly, would it not be helpful to have an assessment of the quality of draft regulations and legislation? The noble Lord, Lord Haskel, made a thoughtful and useful speech recently on the use of technology to improve drafting, which I am pleased received a very positive response from the Minister.

The Secondary Legislation Scrutiny Committee has also considered how we might improve scrutiny. After receiving evidence, it said:

“We recommend that further work should be undertaken by some appropriate form of collaborative group to consider what procedural changes in both Houses could be introduced to make parliamentary scrutiny more effective”.

Obviously, we have no locus for the other place and I am not putting forward a formal proposal today, but we as a House should consider whether a Select Committee—either a new committee or one that is currently established—could examine not just how we deal with legislation but what information this House should reasonably expect from the Government to be able to fulfil its responsibilities effectively. They are two sides of the same coin.

Having reflected on the past Session, we now have an opportunity. We can bring a new rigour and focus to our deliberations. I think that we as a House can devise a more robust, intelligent approach to how we manage our business and remove the frustrations of seeking information that should be, but is not, available—which often extends the debate on the issue of process rather than on the policy that we want to debate. It would also assist Ministers—who, as we have seen, all too often struggle to provide the detail that we need—thereby delivering better legislation.

I think that these proposals are worthy of further consideration. Setting up a committee of your Lordships’ House to look at this specific point should be further considered. I urge the Leader of the House to respond positively to these suggestions today. I beg to move.

--- Later in debate ---

[Baroness Smith of Basildon]

I thank the noble Baroness, who made some very constructive and helpful points. I also thank all noble Lords who contributed and who listened to the debate today. It has been a very impressive debate, showing this House at its best and, given its quality, perhaps showing why this House should have a greater role when scrutinising legislation.

I never intended the debate to be all about the report of the noble Lord, Lord Strathclyde. I was really trying to get a sense of the direction of thought from your Lordships’ House on the kinds of measures we have been discussing and that we would like to engage in. It has been helpful to have that today. The support we have had for the proposals is very welcome.

However, I do not agree with noble Lords who think that the conventions have been broken. I do not know how many times I have to say this but I will do so again: we abide by the conventions of your Lordships’ House. Even if some noble Lords think that on one day, on one vote, the conventions were stretched a bit, I do not think that in any way detracts from the observance of those conventions around the House at all times.

When we had the tax credits vote, the proposal from my noble friend Lady Hollis was intended to be helpful. Noble Lords will recall that we did not support a fatal Motion, although I think the noble Baroness said once before in response to the noble Baroness, Lady Hayman, that, had we done so, it would not have broken the conventions. The House was seeking a way to be helpful to the Government. My grandmother had a saying that no good deed goes unpunished. Given that it led to the Strathclyde review, I wish I could tell her how right she was.

I wish to pick up on a couple of points. Mention was made of how many defeats the Government had suffered or endured in the last Session, and a figure of 53% was given. However, that was around 60 votes, exactly the same as during 2001—the noble Lord need not shake his head at me; I am telling him this as a fact, but I see he wants to use percentages. Let us look at the numbers. It is around 60 votes. The reason why percentages are not valuable here is because this House, knowing the arithmetic of the House, does not vote nearly as often as it did when the noble Lord, Lord Strathclyde, was the Leader of the Opposition. Therefore, we exercise the restraint that the Government so crave, we vote less often, so if we win the same number of votes, that affects the percentage. If the noble Baroness and the noble Lord want us to go through the Division Lobbies far more often and orchestrate losing votes to get the percentage down, that can be done but that is really not the way to do things. Let us look at exactly what we are talking about and not compare apples and oranges.

The other issue around the number of votes concerns the quality of the votes. The Labour Government lost votes around national security. One of the issues on which we voted where this House took a different view from that of the Government was to set up a Joint Committee to look at whether or not the Government’s EVEL proposals—English votes for English laws—could be examined to see whether they had an impact on this House. The Government class that as a defeat. I class it as a victory of common sense for your Lordships’ House. However, it would still come into the 53% figure. Indeed, the Select Committee which set up the Trade Union Bill, and which greatly assisted this House, was something which the Government opposed. Therefore, we have to look at the quality of the votes as well. I make no apology as regards those issues on which we have won votes but I also say that we have exercised restraint. We vote less than half as many times as does the Commons and we vote fewer times than Oppositions have in the past.

The noble Baroness said that there were fewer statutory instruments now. I did not raise the issue of the number of statutory instruments debated in this or the last Parliament. That was not part of the argument I was making. My concern is that in legislation now there is a greater use of delegated powers than we have had before. I am grateful to the noble Baroness for acknowledging that there seems to be a far greater use of delegated powers for policy issues and not the normal uprating issues. Tax credits were an example. They should have been contained in legislation, not a statutory instrument. The noble Lord, Lord Norton, referred to the number of pages. I have not counted them but it is the significance of the policy matters that cause this House concern. I was grateful to the noble Baroness for acknowledging—as I did—that in the first Session of any Parliament it is sometimes difficult to have legislation that is fully formed. However, we are now in the second Session of this Parliament and that scenario still applies to the buses Bill and the Children and Social Work Bill. Her comments were helpful. If she could rigorously look at those two Bills, as she has offered to do, I am sure that all of us would be very grateful and appreciate it.

The noble Lord, Lord Trefgarne, made an interesting contribution. He may not think that I am going to agree with him but, surprisingly, I am. He said that a veto, or voting against, or declining to accept a statutory instrument should be used only in very exceptional circumstances. There have been six times, I think, since 1950 where a fatal Motion has been accepted by this House, and something like 150 times where they have been rejected when they have been tabled. So it seems that they are being used only in very exceptional circumstances, and I think that it is fair that we have that.

The other point that the noble Baroness made was about ensuring that impact assessments and draft regulations are available for Committee; I suggest that she does not take the whole burden for that on herself. I greatly appreciate that she would do more with the Bills coming to this House to have that information ready. But we have even had Bills that have gone through their Commons stages and then come to this House without us having that information available. She needs to engage with her Cabinet colleagues to make sure that, at the other end of the Building, they are also ensuring that that information is available when Bills are debated in the other place.

Today’s debate has been really instructive and impressive for your Lordships’ House. I am grateful for the support and I shall go away and think further on some of the comments that have been made. Perhaps we need to up our game on scrutiny and to ensure that we always have the correct information. The noble and learned Lord, Lord Judge, made the point about Henry VIII powers—I think that they may have extended too far into the future on some occasions. If we can remove some of the obvious tensions that come about not because of policy issues and policy debates but because of lack of information, then our debates and discussions will be a lot more constructive and helpful, both for Ministers who sometimes struggle because they have not been given a fully formed policy and for those who are struggling to get that information.

I am grateful to your Lordships’ House and to the Minister for her helpful comments, which we can build on.

Motion agreed.