Parliamentary Proceedings: Statistics
Lord Lisvane Excerpts(7 years, 4 months ago)
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Lord Lisvane (CB)
My Lords, my noble friend’s excellent Question is narrow, but its implications are wide. The rule of law is central to any civilised society. The quality of law is a determining factor in the respect in which the law is held, so it is central to the rule of law. The other side of the equation is just as important: how well does the legislature scrutinise the legislative proposals of the Executive?
One of my learned predecessors as Clerk of the House of Commons, Sir Thomas Erskine May, said in the first edition of the great work which still bears his name that there are no limits to the legislative authority of Parliament other than,
“the willingness of the people to obey, or their power to resist”.
So that legislative authority should be exercised with great care. Alas, I do not think we can make the claim that it is. The legislative process may not quite be broken, but it is certainly not working very well. The approach of Brexit legislation makes the need for improvement ever more urgent.
Despite words of comfort from the Government, too much of significance is still put into delegated legislation, with no firm and observed principles as to where the boundaries should be set. There is extensive quasi-legislation, such as codes and guidance, which have the force of law but are largely left to Ministers to make up their minds about after the event. Powers delegated to Ministers, including Henry VIII powers, are often much more extensive than they need to be, and generally with insufficient parliamentary scrutiny; for example, in the previous Session there were 14 government Bills, containing a total of 41 Henry VIII provisions.
When I was invited by the Statute Law Society to give its annual lecture in a few weeks’ time, I had no difficulty in choosing the title of my lecture. If noble Lords will forgive a moment of advertisement, it is: Why is there so much bad law? “Bad”, of course, refers both to the end product and the way in which it gets on to the statute book. In my previous life, I used to say to audiences outside Westminster, “Don’t for a moment run away with the idea that a Bill is draft legislation; it is not. It is, word for word, what the Government of the day want to see on the statute book”. The corollary of that, of course, is that Ministers, of whatever party, have a collective allergy to amendments. In a way, that is understandable. If a department has been thrashing out the contents of a Bill, clearing it with other departments and the devolved Administrations, dealing with potential difficulties within the party of government, getting it through the business managers and PBL, there may be a feeling, when the Bill is finally ready for introduction, that the job is done. But of course that is when the real job has to start, and that is where both Parliament and Government need to up their game.
My noble friend referred to draft Bills. I realise that Her Majesty’s Ministers have quite a lot on their plate for the foreseeable future, but I have been very disappointed that draft Bills appear to have become an endangered species. In this Session, only the ombudsman Bill was published in draft. In the Queen’s Speech, another was promised but it has so far failed to appear. Draft Bills can of course be heavy on drafting resources, because parliamentary counsel are involved with both the draft Bill and then the Bill as it is to be introduced. But they offer a real increase in the quality of legislative scrutiny, with a consensual approach, evidentially based amendment and public access to the legislative process—much greater access, and much more effective, than the evidence-taking phase of Commons Public Bill Committees.
Draft Bills should commend themselves to business managers because consideration by a Joint Committee should avoid double handling in the two Houses and make the passage of the Bill as introduced much smoother. If only the Higher Education and Research Bill had started life as a draft Bill. I remember from our enjoyable association in the House of Commons that the Minister used to think that draft Bills were really quite a good idea. I hope that he still does so and that he will be able to offer us some comfort and cause for hope this evening.
Queen’s Speech
Lord Lisvane Excerpts(8 years ago)
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Lord Lisvane (CB)
My Lords, the noble Lord, Lord Richard, and my noble and learned friend Lord Judge both raised issues of financial privilege, often seen perhaps as something of a minority sport. I think procedures have moved on a little since I was directly involved, but I agree that it is an issue that would benefit from greater clarity, as urged by my noble and learned friend Lord Judge, and the development of perhaps greater joint understanding, as urged by the noble Lord, Lord Richard.
As a fellow member, along with the noble Lords, Lord Hain and Lord Campbell of Pittenweem, of the constitution reform group that was convened by the noble Marquess, Lord Salisbury, I endorse what the noble Lord, Lord Hain, said in his excellent speech. However, I will not follow him all the way down the track of possible elections to your Lordships’ House. The constitution reform group was created exactly to address the sort of patchwork that was identified by the noble Lord, Lord Norton of Louth.
The reference in the gracious Speech to the primacy of the House of Commons has generally been taken, I think correctly, to be a shot across the bows of your Lordships’ House. Perhaps at this stage there is merit in a shot across the bows rather than one into the wheelhouse, but there is a certain irony in this, because I am sure that the primacy of the House of Commons as the elected House is something that your Lordships would agree on as one, as the noble Lord, Lord Cormack, pointed out earlier. There is a further irony in that part of the gracious Speech, because the reference to the primacy of the House of Commons is preceded by another ministerial undertaking: to uphold the sovereignty of Parliament—Parliament and not the Executive. With a respectful nod to my noble friend Lord Butler of Brockwell, I think it is increasingly common ground that the issues raised by the Strathclyde report are not issues between this House and the House of Commons but between Parliament and the Executive, with each House doing its distinct job of scrutiny and challenge on behalf of all our citizens. It is good to know from the gracious Speech that Ministers are ranged firmly on the side of Parliament, although that may not be quite the sense that was intended by the drafters.
Just as there is broadening agreement that these issues are about parliamentary control of the Executive, there is, I am glad to say, increasing agreement that Strathclyde option 3 is not the way to address any perceived difficulty—although with six defeats of subordinate legislation in your Lordships’ House over about half a century, I suggest that the onus of describing the difficulty rests with those who wish to perceive it. In this, I may be diverging from the view of the noble Lord, Lord Wakeham, and that is, to some extent a first. On parliamentary matters, I have been cordially agreeing with him now for about 44 years.
Increasing agreement about the unwisdom of legislating, with all the risks of collateral damage that might come with it, is demonstrated not only by three reports from committees of this House but also by the report from the Commons Public Administration and Constitutional Affairs Committee, which has criticised Strathclyde option 3 in terms just as uncompromising as those used by the committees of this House. It said that,
“legislation would be an overreaction and entirely disproportionate to the House of Lords’ … exercise of a power that even Lord Strathclyde has admitted is rarely used”.
Then the Commons committee comes to the nub of the matter:
“The Government’s time would be better spent in rethinking the way it relies on secondary legislation for implementing its policy objectives”.
So in the very limited time that I have left, I ask, at the beginning of this legislative Session, what are the chances of a sea change in the quality of legislation? Have government departments been told to ensure that in the instructions to parliamentary counsel, matters of policy and principle are for primary and not secondary legislation? Has PBL, the Parliamentary Business and Legislation Committee of the Cabinet, set itself an objective for the rest of this Parliament that Bills will be properly ready for introduction, unlike the then Housing and Planning Bill, and will set out clearly what is to be achieved, unlike the then Childcare Bill? Have the Government heeded the wise words of my noble and learned friend Lord Judge on Henry VIII clauses, which allow Ministers to amend or even repeal primary legislation in a potentially highly undemocratic way? The Cabinet Office guide to making legislation instructs Bill teams to pay “particular attention” to Henry VIII powers—a slight ambiguity there—but does that mean that there will be fewer of them?
I do not expect the Minister who winds up to give me the answers to all these questions, although it would be jolly nice if he could, but I would be grateful if he could answer this final point. Unusually, there is no explicit mention in the gracious Speech of any draft Bill, although one has been subject to pre-legislative scrutiny and another is to be “proposals”. Now that we are in the second Session of Parliament and the first-Session difficulties of producing Bills in draft are reducing, how many draft Bills may we expect? If the Government are serious about improving the quality of legislation and the legislative process, draft Bills would be one very good measure.
Housing and Planning Bill
Lord Lisvane Excerpts(8 years, 1 month ago)
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Lord Lisvane
“( ) regulations under section 67(1) that contain more than one determination or a determination that relates to more than one local housing authority,( ) regulations under section 67(8),”
Lord Lisvane
My Lords, this amendment is consequential upon Amendment 53, which was agreed on 13 April. I beg to move.
Baroness Williams of Trafford
My Lords, Amendment 132, which has been tabled by the noble Lords, Lord Lisvane, Lord Kerslake and Lord Beecham, would make regulations on the definition of higher value and on determinations subject to the affirmative procedure. As I have made clear, we have listened to the House and agree that the regulations defining higher value should be made through the affirmative process. We will table an additional amendment in relation to this to ensure that no hybridity issues arise in respect of those regulations. We do not agree that the determination should be put into regulations and that those regulations should be subject to the affirmative procedure. However, I recognise that the House voted to accept Amendment 53, which put the determination into regulations, and that agreement has been reached that Amendment 132 will be accepted by the will of the House. It is important that I am clear to noble Lords that the Government are concerned that putting the determination into regulations will add more complexity and delay to the process and that we intend to return to this issue in the Commons.
Lord Lisvane
Lord Lisvane
My Lords, as we embark on the last group in five heavy days of this Bill on Report, I am under no illusions at all about your Lordships’ wish to have a lengthy debate. However, it is perhaps appropriate that the issues raised by this last group reflect concerns raised at Second Reading, in Committee and on Report: what is good legislation and how do you go about it?
Amendment 138 is simply a paver for Amendment 140, in that it would remove the immediate commencement date from the provisions on vacant high-value housing, which Amendment 140 seeks to delay. Amendments 139, 140 and 141 in my name and that of the noble Lords, Lord Kerslake, Lord Kennedy of Southwark and Lord Foster of Bath, are sunrise amendments. They would delay the coming into force of provisions on, respectively, rents for high-income social tenants, vacant high-value housing and starter homes, until the key regulations in each case had been laid before Parliament. It is fair to say that the period of delay might be much too long in practice, but of course its purpose is demonstrative.
The aim of the amendments is to reverse the default setting with which we have become perhaps almost too familiar in considering the Bill: first, that a great deal—too much, in the minds of many—is left to secondary legislation; secondly, that the level of parliamentary control is too low, although I am glad to say that some welcome steps have been taken in this respect on Report; and, lastly, that too much depends on consultation that should have taken place before the Bill was ever introduced and whose outcome, even at this stage, we have to take on trust.
Over many years in this building I have become familiar—even wearily so—with the special difficulties of a first Session of a Parliament, particularly when there has been a change of Administration at the previous general election. However, I do not think that that entirely justifies the position in which we have been put. Sometimes one must accept delay in order to get things right. Getting things right means following the logical process of formulating policy, consulting upon it, finalising it and then putting it into draft legislation, with all the key areas of policy being in the Bill.
In what seems now the dim and distant past, there used to be such things as Green Papers. Not only did they allow consultation on proposals; they also allowed legislative intent to be stress-tested before proposals came formally before Parliament. I attach no blame at all to the noble Baroness, Lady Williams of Trafford, and her noble friends on the Front Bench. She has constantly sought to be helpful, as have her officials and the Housing Minister, Brandon Lewis. Like, no doubt, other noble Lords around the House, I am very grateful for that but from time to time, Ministers have reminded me of anguished travellers on a runaway train. They have been prisoners of a legislative culture in the Executive. I do not single out the present Administration in this respect; it has been going on for a long time, perhaps too long. That culture militates against real parliamentary scrutiny.
In passing, I note that Clause 189(2), which is outside the scope of these amendments but close by, is a hefty Henry VIII power of the sort against which my noble and learned friend Lord Judge warned us in his masterly King’s College lecture a fortnight ago.
The message of Amendments 139, 140 and 141 is really that, had this measure come before Parliament in the form of a draft Bill, it would have resulted in better legislation. I know well why that was not the option the Government found attractive, but I hope that this Parliament will see a dramatic increase in the number of draft Bills, and that we may hear of a reassuring number in the gracious Speech in just over three weeks’ time. I beg to move.
Lord Foster of Bath (LD)
My Lords, I shall briefly follow the noble Lord, Lord Lisvane. At Second Reading, I and many other people acknowledged that there were some very good bits in the Bill before us at that time. However, we pointed out that there were also many bits about which we had considerable concern. There are at least some areas where deliberation in your Lordships’ House has brought about improvements to those areas where we had concern. I, too, pay tribute to the Minister and her colleagues on the Front Bench for the way in which they have been willing to listen and bring forward amendments in the light of our deliberations.
However, none of that can take away from the fact that the Bill has been presented, not only in another place but more recently to your Lordships’ House, in a pretty poor state. Because I am relatively new to your Lordships’ House, I turned to my elders and betters to see what they have thought about it. As we come to the end of the deliberations on this legislation, it is worth reflecting what your Lordships’ Delegated Powers and Regulatory Reform Committee has had to say about the Bill—not only when it first received it but subsequently, after various deliberations had taken place.
I note that, in its 27th report, the committee says:
“This Bill has given rise to a particularly large number of comments and recommendations … It is also disappointing that we have felt it necessary to comment adversely on aspects of the delegated powers memoranda provided by the department”.
It described those memoranda as “variable in quality” and pointed out that in relation to some parts of the Bill,
“no delegated powers memorandum was provided at all”.
When the Government responded to the committee’s initial findings, the committee then had to point out that:
“It is a matter of regret that the Government’s response to this Bill … gives us cause for continued concern in that a number of our recommendations received no comment at all”.
The committee made the point that many Members of your Lordships’ House have made many times over many weeks, when it said that,
“we would observe again that these provisions are being presented to the House before the underlying policy is sufficiently developed to afford Members a clear basis for discussing it”.
In its 28th report, the committee amplified that in saying:
“Inadequate and incomplete provisions of … primary legislation cannot be excused on the basis that consultation has not taken place or that the Government wish to retain ‘flexibility to set out differing timeframes as they apply in different contexts’”.
The committee concludes:
“The policy should have been finalised following appropriate consultation before, not after, the Bill was introduced”.
One can read so many other comments from the report:
“We draw this apparent ambiguity to the attention of the House … We draw this lack of clarity to the attention of the House … That seems to us to be a very unusual requirement, and we draw it to the attention of the House”,
and so on. It is “not persuaded”, it does not regard this as being remotely persuasive, and so the report goes on.
It is perfectly reasonable for people to propose a sunrise clause as a way of simply putting off legislation with which they disagree, and we on these Benches disagree with bits of this legislation. However, the noble Lord, Lord Lisvane, has made a much more fundamental point about why there should be a sunrise clause, which is simply that the work has not yet been done. Until the work has been done and draft regulations are put before the House and we have an opportunity to know that that consultation has taken place and to understand what the Government mean by some of the definitions we have not yet heard, it seems perfectly reasonable to propose, as the noble Lord and others have done, that we have a sunrise clause to put off the introduction of this legislation until the Government have done the work that they should have done before presenting the Bill to this House.
Baroness Williams of Trafford
My Lords, we end Report as we began, discussing the principle of many of the policies within the Bill. The evening is drawing on—it is now quarter to 11—so noble Lords will forgive me if I do not restate all the arguments for all the policies.
However, I will say this. Later this week, we will pass to the other place a Bill which contains a number of distinct manifesto policies and which implements a number of measures set out in the Government’s Budget or productivity plan. The Government’s intention is quite clear. We all agree that this country, and in particular our young people, need more homes to be built. That is a key theme for this Government, and changes to the planning system and building new homes take time.
I understand the concerns raised by noble Lords, particularly the noble Baroness, Lady Hollis, about the availability of detail on some of the policies in the Bill, but this set of amendments would place delay upon delay on the building of new homes. This is extra time that we simply do not have. It would mean a delay to the sale of high-value assets, meaning delays to building two more affordable homes in London for every one expected to be sold, and a delay to the commencement of starter homes, meaning fewer built for young families looking for somewhere to call their own.
I have heard the arguments raised time and again—that noble Lords feel that the detail of our policies should be available for scrutiny before work is done to legislate for them—and I understand the points that have been made. I am very keen to see consensus where possible and to continue to engage with noble Lords across the House as we go forward in developing regulations after the Bill has completed its passage. That is why I have made a number of changes to enhance the role of Parliament in scrutinising our plans. Several regulations will now not come into force without the detail being agreed by both Houses. I believe that this is a good compromise, and it is the result of noble Lords’ passionate arguments and skill in refining the Bill to the point at which we are today.
Amendments 138 and 140, tabled by the noble Lords, Lords Lisvane, Lord Kerslake, Lord Beecham and Lord Foster, would delay the sale of high-value assets and the delivery of new homes which that would unlock. Furthermore, the sale of assets to pay for the voluntary right-to-buy agreement is a manifesto commitment, and people want to exercise their right to buy as soon as possible. Already more than 25,000 housing association tenants have registered their interest in taking up this option, with 1,000 registering their interest each week. Our current arrangements will allow Parliament to scrutinise the detail first, and I hope that that will satisfy noble Lords. However, at this point I must make it clear that I will not bring back this amendment at Third Reading. Therefore, if the noble Lord is not content with my response, he should test the opinion of the House this evening.
Likewise, the affirmative regulations effected by Amendment 141, tabled by the noble Lords, Lord Lisvane and Lord Kerslake, would prevent the starter home provisions in the Bill coming into force until a year after regulations are laid in both Houses. I say again that the Government’s manifesto commitment was to deliver 200,000 starter homes, and we will be expected to deliver on our commitment. Our current arrangements allow Parliament to scrutinise the detail first.
I hear noble Lords’ arguments clearly, however, and local planning authorities need time to consider new measures. That is why we are consulting on the provision of transitional arrangements in our technical consultation. We have asked an open question to understand the views of the sector on this important matter.
The regulations will not act retrospectively on existing planning consents. It is also our intention that they will not apply to any application already submitted to a local planning authority. I am sure noble Lords do not want to delay housebuilding because their amendment stops development for a year, and that would be its impact.
Turning now to Amendment 138C, which is from the noble Lords, Lord Krebs and Lord Kennedy, and deals with flooding, I acknowledge that where we do build we need to do so in a way that ensures that the flood risk is managed effectively and so that new development does not add to the flood risk. Our planning policies are designed to do just that. I am glad to acknowledge the important work which the noble Lord, Lord Krebs, has led with the adaptation sub-committee of the Committee on Climate Change on this matter. We understand and appreciate the intention of the noble Lord to find further ways to ensure that new development is not built in areas of high flood risk. His proposal raises some complex issues, not least the interaction with insurance arrangements and the operation of the existing warranty schemes for new homes. We all want to avoid a situation where there is any confusion about liabilities and responsibilities between housebuilders, insurance companies and warranty scheme operators. The Housing and Planning Minister, Brandon Lewis, wrote to the noble Lord offering further discussions between officials on this matter, including with colleagues from Defra. I am very happy to repeat that offer this evening. I can confirm that I will write to the noble Lord with details of those planned discussions. I hope he will accept that as a positive way forward.
I know that some of us are not going to agree on policies linking social rents more closely to income, despite the progress that we have made. I have listened to the debate with care, but my response may not come as a surprise. Amendment 139 would delay payment of a fairer rent by those who can afford it, and the money raised through the policy has been identified as a contribution to deficit reduction. Delaying the implementation of the policy in this way would reduce the Government’s ability to use that money for this important purpose. I have previously announced a significant package of measures aimed at ensuring that the policy is applied fairly, including the use of a taper and exemptions for people on certain benefits. We are carefully considering the amendments made by noble Lords to the policy on Report before we return to this discussion in the Commons. We will give tenants time to prepare for the introduction of the policy by working with local authorities now to ensure that they are fully aware of the need to put preparations in place to deliver measured and tapered rent increases in April 2017. My officials and I have had constructive conversations with the noble Lord, Lord Lisvane, about how we can implement the Bill as practically as possible.
As I said earlier, I hope I have been clear in what I said: if the noble Lord is not happy with my response, he should test the opinion of the House.
Lord Lisvane
My Lords, I am grateful to the Minister, especially for her undertaking to seek consensus as the details have developed—that is extremely helpful. I know that she has taken my criticisms in good part. In practice, these amendments raise issues that are lessons for the future, rather than an occasion for a final skirmish on Report. Accordingly, I beg leave to withdraw Amendment 138 and will not move the subsequent amendments.
Security: State Procession
Lord Lisvane Excerpts(8 years, 11 months ago)
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Lord Bridges of Headley
I am sorry that noble Lords shake their heads but, as my right honourable friend the Chancellor pointed out yesterday, we need to do it. Since 2010 the Government have generated £1.4 billion in land and building sales while the running costs of the estate have fallen by £647 million compared with 2009-10. Moreover we have done that while ensuring that security is upheld, as I have explained to the noble Lord.
Lord Lisvane (CB)
My Lords, as someone who sought to buy the Curtis Green building for parliamentary use rather than as a luxury hotel, I commend the noble Lord, Lord Wallace of Saltaire, for raising this issue. It is extremely important that a full formal CPNI security assessment is given to Ministers in the case of each building. I ask the Minister to bear in mind that many of these buildings are connected underground. I also ask him to ignore the siren voices which suggest that security can be assured simply by sealing tunnels. It cannot; ask anybody in Hatton Garden.
Lord Bridges of Headley
There are service ducts under many buildings for electricity, telecommunications and other services, and any security risks in relation to them, as with any other part of the buildings, have been assessed and taken into account in the sale of the leases. I need to repeat that the security agencies are involved in all disposals of government property and their advice is always taken into account.