Strathclyde Review

Lord Higgins Excerpts

Wednesday 13th January 2016 Lords Chamber

[Lord Higgins (Con)]

My Lords, I join those who congratulate my noble friend Lord Strathclyde and his team of experts on a really excellent report; it is extremely useful in setting out the position with regard to statutory instruments and, to some extent, financial privilege. I have only one technical quibble: it would have been helpful, particularly in relation to this debate, if the paragraphs had been numbered.

It is a great pleasure to follow the noble Lord, Lord Cunningham of Felling, because I had the pleasure of serving under his chairmanship on the Joint Committee on Conventions, which was a remarkable committee. As he has just said, it was unanimous, and its reports were approved by both Houses as an appropriate way forward. It is worth referring to a passage in the report of the committee concerning statutory instruments, which was quoted in my noble friend Lord Strathclyde’s report. It states:

“The Committee concluded that ‘the House of Lords should not regularly reject Statutory Instruments, but that in exceptional circumstances it might be appropriate for it to do so’. A number of specific circumstances were identified, for example, when the provisions of an SI were of the sort more normally found in primary legislation or in the case of certain specific orders”.

It went on to say that under particular circumstances, opposition parties should not simply vote against something because they had disagreed with it.

The crucial point is that one needs to put that in the context of the catalyst that gave rise to my noble friend’s report, namely the debate that we had on the tax credit order. It is absolutely clear from the passage I quoted that the convention was not breached. Quite clearly, that statutory instrument involved something that ought to have been in primary legislation. That being so, it was quite appropriate for the Opposition to take the view that it was legitimate to vote against it. The reason that I did not vote with them was because it involved financial privilege and it seemed to me that that overrode the issue as far as the convention and the ability to vote against it were concerned.

The whole issue arises from the extraordinary fact that this statutory instrument involved financial privilege to such a massive extent. I find it totally puzzling that the Treasury ever allowed this to happen. It looked as though it was trying to pull a fast one, which I do not believe was so. I can understand that the primary legislation enabled it to do that but, in political terms, not to foresee the problems that it would create in this House is, I think, quite extraordinary. We must, therefore, look at this whole issue and the report of my noble friend as a reaction to what was an extraordinary, and not a normal, situation. In that context, we need to consider our position. I had great trouble, as I said, in knowing which way to vote. There is no great problem in dealing with the financial privilege point; the simplest solution would be for the Treasury never to do the same thing again. Or it could be dealt with by the unusual procedure of being debated only by the Commons.

I come to the broader question of how to deal with the situation. I believe that the report 10 years ago had, basically, the right approach. It is not right to cite the tax credits fiasco, if I may put it that way, as a reason for saying we cannot maintain the convention. There is a lot to be said for it. My noble friend Lord Strathclyde and I share the view that conventions are better than legislation, if that can be done, although, strangely, he comes down in favour of option 3; I would prefer option 2.

We need to give this very careful consideration. Perhaps we should reconvene the committee on conventions —I am not volunteering, necessarily—to look at this issue again. There was no breach of the convention. My noble friend’s report is wrong, I think, in suggesting in a later passage that, somehow, the fact that this event took place shows how difficult it is to agree on what the conventions really are. We are fairly clear and we could in fact enumerate the various exceptions that might be appropriate. It is at least worth an attempt to do so, because it avoids legislation. I view the idea of more legislation on matters involving the House of Lords with considerable alarm. The issue of composition was cleverly avoided by my noble friend in his report by stating that it was outside his terms of reference, but that will not necessarily apply in the case of legislation. That is a dangerous and rather heavy road to go down. The report says that a Bill may not need to be very long. It is not a question of whether it is long but of whether it is dangerous. That is an important point that we need to bear in mind.

There have been various comments by people outside who take a profound interest in the operation of your Lordships’ House. I noticed that Meg Russell, who comments frequently on our affairs, suggested, perhaps optimistically, that this was a marvellous opportunity to have a negotiation on whether we should reduce the size of the House by capping our numbers in exchange for more restriction on the operation of this House. That is rather optimistic—it would certainly confuse the negotiations.

Overall, we should have a shot at option 2. I rule option 1 absolutely out of court, not least because, as my noble friend Lady Fookes said, it would affect our two extremely valuable committees that do this work that the House of Commons does not. But I think that that is a better option than suddenly rushing in on the back of an event that was controversial to legislate on this matter and to limit and control the powers of your Lordships’ House.