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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.
Baroness Smith of Newnham (LD)
My Lords, I thank the noble Baroness, Lady Smith of Basildon, for bringing forward this Motion for debate and I welcome many of the comments she made. I intend to focus my remarks on the balance of power between the Executive and the legislature and between your Lordships’ House and the other place, leaving the more detailed discussion of statutory instruments to those with rather more experience in your Lordships’ House than I yet have.
As the noble Baroness, Lady Smith, has already noted, one issue is uncontested—the primacy of the elected Chamber. We all agree on that. It is the basis on which the Salisbury convention rests and the reason why your Lordships normally hold back on matters that were clear manifesto commitments of the governing party, even if we on these Benches have not formally subscribed to the Salisbury convention. This inevitably leads to a degree of executive dominance in a way that does not occur in the US, where the separation of powers is strictly observed, or in many European countries, where coalition Governments, consensus Governments and minority Governments often render legislatures relatively more powerful than in the United Kingdom. Coupled with the large payroll vote in the United Kingdom, there is a tendency to executive dominance, for the Government to lead the process of legislation. Parliament sometimes appears to be silent.
In its excellent briefing on the Salisbury doctrine, however, the House of Lords Library reminds us that the doctrine argued that,
“the will of the people and the views expressed by the House of Commons did not necessarily coincide, and that in consequence, the House of Lords had an obligation to reject, and hence refer back to the electorate, particularly contentious Bills, usually involving a revision of the constitutional settlement, which had been passed by the Commons”.
But what of those rare occasions, which seem to be becoming increasingly familiar, of national referendums? The Conservative Party’s manifesto pledge was clear in its intent that there should be reform, renegotiation and then a referendum on whether or not the United Kingdom should remain a member of the European Union. Hence, Members of your Lordships’ House worked in the spirit of the convention, with due care and attention, to pass the European Union Referendum Act 2015 expeditiously, even if some aspects have not worked out as we intended. I will not refer further at this stage to the Electoral Commission.
The decision to hold a referendum was intended to allow the people of the United Kingdom to decide a contentious issue that divides political parties. It goes to the core of democracy and offers one person, one vote. Can the Leader of the House confirm that in cases where the Government and Parliament have, in their wisdom, offered a referendum, the results of that referendum must stand whether or not Members of Parliament—elected or otherwise; of the other place or your Lordships’ House—like them? As the noble Baroness, Lady Smith of Basildon, noted earlier, certainty in politics is a luxury. We on these Benches want a vote to remain, but we are also clear that the views of the citizens must be respected whatever the outcome in two weeks’ time. Neither the Government nor Parliament should seek to circumvent the will of the people on this matter. Does the Leader of the House agree?
I turn to cases where manifestos are perhaps silent. Proposals came forward in the last Parliament that were not in any party’s manifesto. A case in point was the legislation introduced by my noble friend Lady Featherstone, which was given considerable support in your Lordships’ House by the noble Baroness, Lady Stowell, in a previous capacity. What arrangements could or should be in place for such initiatives coming forward from the Executive in the absence of any manifesto pledges? Are the current arrangements fit for purpose? Perhaps they are.
Conversely, and more significantly, what provisions do we have and envisage for cases where there is a strong voice from Parliament—usually in both Chambers —that legislation is needed or may need to change but the Government do not agree with that position? In particular, I am thinking of the case in the last Session relating to genocide, particularly the genocide in Syria of the Yazidis and Christian Syrians. The other place voted unanimously for a resolution on genocide but, so far, there has not been a clear response from the Government to that resolution. This issue is the subject of a Private Member’s Bill which is to be brought forward by the noble Lord, Lord Alton of Liverpool, next Monday. The Bill reflects, in part, a concern that the United Kingdom is failing in its duties under the 1948 Convention on the Prevention of Genocide. This is not a manifesto commitment of any political party but it reflects the views of Members across all parties in both Chambers.
Will the Leader of the House comment not on the merits of that specific Bill but on the general principle of how the Government might respond in a timely and measured fashion to initiatives—not necessarily brought forward in Private Members’ Bills but in cases such as the resolution in the last Session—where there is clearly a strong will particularly in the elected Chamber and also in your Lordships’ House? Is there a way that the Government can listen and respond to widely held positions in order to re-empower Parliament and rebalance Executive/parliamentary relations?
Lord Strathclyde (Con)
My Lords, this is an excellent Motion to debate and I am delighted that the noble Baroness has brought it forward. It is also an excellent time to have the debate. A year on into a Conservative Government and a new Parliament, with four years to go, it is an opportunity for us to consider and reflect on how Parliament and the Executive operate and on the quality of legislation. In raising these important issues, the Leader of the Opposition has fulfilled her constitutional duty. During the course of her speech, I could not help thinking how much I agreed with her and how I could have made a similar speech from where she is sitting and from where my noble friend the Leader of the House is sitting, too, because these are universal ideals.
I do not detect a concerted or co-ordinated attempt by this Government to circumvent scrutiny by either House of Parliament and there is no evidence to say that there is. However, we should take seriously the natural instincts of all Governments to make their lives a little easier. You do not have to look back far in history to know that the Government of Tony Blair and Gordon Brown, under the guise of modernisation, brought in deferred Divisions, sofa government to avoid Cabinet government, and guillotines as a matter of course. This was all in order to make the life of the Government a little easier.
Of course we should have more thought-through policy before it comes to Parliament and we should demand better drafted and more understandable Bills. I have still not got to the bottom of why Bills drafted today are so much more complicated than they were 20 or 30 years ago.
Of course Governments can ask for—and should be given—order-making powers for all the reasons that we understand, but they should be clearly expressed and, where possible, published in draft. I would be in favour, if one were proposed, of a committee to look at the drafting of legislation and perhaps take evidence from the First Parliamentary Counsel on the department in question’s resources, its drafting guidelines and so on. I hope the Government would support that.
The noble Baroness raised the issue of what happened towards the end of the last Session of Parliament. At one point, with a few weeks to go, it looked as if we were heading for a great legislative car crash. However, the reverse happened—there was wisdom. This not only requires sensible Ministers but a sensible Opposition to reach a compromise. If, however, we have to agree to disagree, we should do so and not push it any further. That is a proper constitutional role for the House of Lords which is well understood. Yet, in the last Session of Parliament the Government were defeated in more than half the votes—53%—in this House. That just sounds like too many, and I hope the noble Baroness will take her Chief Whip and Deputy Chief Whip to one side and suggest to them that that was overkill. With that sort of record it is hardly surprising that, as the noble Baroness asserts, my right honourable friend the Prime Minister is thinking of stacking our Benches with more Conservative Peers. I suggest that they focus a little more on their votes rather than the broad-brush approach which they have tried so far.
Lord Richard (Lab)
I thank the noble Lord for giving way. He will remember from the position he then held and I remember from the position I then held that during the whole of the period of the Labour Government from 1997 onwards, not only did we never have a majority in this House, but for most of that time we were not even the largest single party here; his party was. The voting records of those Parliaments show that the average number of defeats of Labour Governments was somewhere between 40% and 50%, which is not very different from what he is complaining about now. I did not hear him complaining about the position then.
Lord Strathclyde
My Lords, I am sorry that the noble Lord made that last point because when he looks back at the figures, I think he will find that the average during that period when we were in opposition was around a third. No doubt the noble Baroness the Leader of the House will be able to put me right if I am wrong on that.
The other argument that is made by many is that we have been faced with a tsunami of secondary legislation, and yet the figures which have just been published demonstrate that in the last Session of Parliament we had the fewest statutory instruments since the 1996-97 Session. Last October I was invited to conduct a review. Some thought that I was reforming the whole of the House of Lords—I hasten to add that I was not. Some thought that I was recasting all secondary legislation, but I was not. I was dealing with a small point about how we agree statutory instruments in this House, and seeing if there is a better way. Since then there have been four parliamentary committees, three in this House and one in another place, all pretty much castigating my humble suggestion but none of them coming up with an alternative. That said to me that they had misunderstood the fundamental problem we face in how to agree statutory instruments in this House, and that they had misunderstood the uncertainty of the status quo.
As practically every child knows, the House of Lords is here to revise and to scrutinise, but it does not block legislation. If it does, there are the Parliament Acts which give the House of Commons the power to overrule this House. This does not apply to statutory instruments. Why not? The first question is this: should we retain our veto? I answered no.
As far back as 1968, my noble friend Lord Carrington asserted that we should not defeat statutory instruments. In his royal commission my noble friend Lord Wakeham built on that theme, and again, I believe that he did so by giving us a little more flesh on the bones of my Motion. What I took into account were those who said that the regret Motions we now have are not enough. Far from clipping the wings of the House of Lords, my suggestion was for a new power and a new ability for this House to demand that a Minister in the House of Commons come to the Dispatch Box, explain why the House of Lords is wrong, and if the House of Commons then reaffirms the original order, we should step back. I still think that that is the right way forward.
I hope the Government will respond shortly not just to my report but to the others. There may be room for an agreement with the Leader of the Opposition, but if there cannot be an agreement, I can see that in order to clarify the situation, there will have to be legislation. I am sure that I am not alone in regretting that.
Lord Cunningham of Felling (Lab)
My Lords, I would normally begin by saying that it is a pleasure to follow the noble Lord, Lord Strathclyde, but I have to say that I fundamentally disagree with almost everything he said. On the other hand I warmly commend the speech of my noble friend from the Dispatch Box on this side of the House and strongly support the recommendations that she has put forward.
An effective and robust balance of power between Government and Parliament lies at the heart of good governance. It also lies at the heart of good democratic scrutiny and control of the Executive. It cannot be acceptable in those circumstances that any Government can arbitrarily decide to change the existing balance of powers or the conventions of Parliament because of a voting defeat resulting from the legitimate use of parliamentary power. Nor is it correct for the Government to assert, as they have done, that a defeat of a statutory instrument by this House is a challenge to the primacy of the House of Commons. Nothing could be further from the truth. The House of Commons does not refer statutory instruments to this House; that is done by the Government. The Government invite both Houses to express an opinion at the same time.
As the Joint Committee report on the conventions of the United Kingdom Parliament makes clear, the primacy of the House of Commons is unanimously accepted not just by the committee but by the unanimous endorsement of that report by this House and the other place. The reality is that four Select Committees, which the noble Lord has just referred to—three of your Lordships’ House and one in the other place—comprehensively rejected his proposals. The House of Commons Public Administration and Constitutional Affairs Committee stated in its report:
“The Government should not produce legislative proposals aimed at implementing the Strathclyde Review’s recommendations. 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’s time would be better spent in rethinking the way it relies on secondary legislation for implementing its policy objectives and in building better relations with the other groupings in the House of Lords”.
There is not much sign in that statement that the House of Commons feels that its primacy is being challenged by this place.
All four committees mention the overuse, or perhaps I should say the abuse, of secondary legislation by this and earlier Governments to make changes in policy, which is not what statutory instruments were originally intended to do. To be fair, the noble Lord, Lord Strathclyde, mentioned this in his own report. The recent report by Mr Daniel Greenberg, entitled Dangerous Trends in Modern Legislation, for the Centre for Policy Studies, also highlights very succinctly the problems of the overuse of secondary legislation. Like my noble friend’s opening speech, that is a good starting point for the urgently needed discussion in your Lordships’ House. We should take the initiative and get on with it. There is no point leaving the procedures of this House and the way it conducts its affairs simply to the Executive. We should not delay. Equally, I strongly believe that we should not delay on reforming other aspects of the work of this House.
Let us face it, this impasse began with a misjudgment by the Chancellor of the Exchequer in trying to use a statutory instrument to make fundamental changes in policy. That is where the problem began. It did not begin in your Lordships’ House, it began in the Executive and the Government, and it was an error from which they are still trying to recover. I remind noble Lords opposite of Healey’s first law of politics: when you are in a hole, the best thing to do is stop digging.
I have seen no evidence to suggest that it is necessary or would be appropriate for this House to make some kind of concession in the face of these government errors. Why should this House agree voluntarily to reduce its very minimal powers, which we all agree are used only exceptionally? It would be going in the wrong direction entirely. I have even heard it suggested—indeed, it was suggested by a member of the Government to one of the Select Committee hearings—that we should agree that this power should remain but should be used only once in a Parliament. Who would make that decision? That would mean that the Government were home free for the rest of the Parliament. They could do what they liked with statutory instruments and this House could do nothing about it. It is a preposterous, ridiculous proposal, and I hope that no one will give it any credibility.
The reality is that we in our own House should challenge this problem head on: the problem of the overuse and the inadequate scrutiny of secondary legislation. After all, most of the scrutiny takes place in this House, so we should be in charge of reforming it.
Lord Butler of Brockwell (CB)
My Lords, at the start of her speech, the noble Baroness, the Leader of the Opposition, was kind enough to make some complimentary remarks about what I said in the Queen’s Speech debate. I want to return that compliment. I very much welcomed the constructive tone of her speech today. I must say that I was a little surprised to hear the noble Lord, Lord Cunningham, say that he agreed with every word that the Leader of the Opposition said, but fundamentally disagreed with the noble Lord, Lord Strathclyde, because, for a major part of their speeches, they were both saying the same thing.
When the Leader of the Opposition put down this Motion for debate, I assumed that this would be a further debate on Strathclyde, so I went to the Printed Paper Office and drew out yet again the noble Lord’s report and the reports of the three Lords Select Committees to find that yet another report had appeared—this time from the Public Administration Committee in another place. I reflected that this issue seems to be prolific in producing Select Committee reports. The only thing that it has not produced so far is a response from the Government.
Today—and I welcome this—the speech of the Leader of the Opposition went wider. She referred not only to Strathclyde and statutory instruments but to the unsatisfactory nature generally of legislation which the Executive present to Parliament. I welcome that because, although secondary legislation is an important part of what is wrong with our legislative procedures, it is not the only aspect. As somebody who spent my career in the Executive, I respectfully agree with the noble Lord, Lord Strathclyde, that what is at the root of this is not any conspiracy to simplify the legislation coming to Parliament but the desire of the Executive to make themselves an easier life. That has been going on for some 250 years. It lies at the root of the development of the party system, the whipping system, it continues to go on and it results in Bills of the sort we see now. The shelves of the Libraries since I migrated from being a bureaucrat to a law-maker are groaning with the reports of committees on which I served, which sought to draw attention to the ill results of our country’s unsatisfactory law-making. As has been said, Bills are ill thought out, inadequately prepared, insufficiently consulted on and hugely added to by the Executive during their passage and finally often replaced before they are brought into operation. The noble and learned Lord, Lord Judge, who I am delighted to see is taking part in this debate, in a devastating lecture, drew attention to how appalled he has been in migrating from being a judge to a law-maker by the widespread and growing preponderance of Henry VIII clauses and secondary legislation, introducing policy changes which should have been in the original Bill. On that I agree with the noble Lord, Lord Cunningham.
One of the committees of which I was a Member—the Leader’s Group on the House of Lords procedure in 201l, set up by the noble Lord, Lord Strathclyde— recommended that the House should establish a legislative standards committee to deal with precisely the deficiencies in legislation presented to the House which have been referred to and to answer these questions. Has the policy underlying the Bill been properly explained? Has there been consultation to establish whether the proposals are practicable? Is there enough detail to enable Parliament to scrutinise it properly?
The proposal of that Leader’s Group, on which representatives from all sides of the House served, was that, like the Delegated Powers and Regulatory Reform Committee, this new committee would consider those factual questions between introduction and Second Reading—not policy questions but the state of preparation of the Bill—and it should report to the House whether a Bill and its surrounding information were in a fit state for parliamentary scrutiny. The clerks to the House recommended that such a procedure was entirely practicable but your Lordships will be unsurprised to hear that this was yet another proposal on which the Government did not support action. Now the time may well be to return to it.
In the Queen’s Speech debate, I said that Parliament’s scrutiny of statutory instruments needed consideration by the Commons as well as by the Lords. Prompt upon its cue comes a report from the Commons Public Administration Committee which reaches similar conclusions. That committee concludes that instead of producing legislative proposals,
“aimed at implementing … Strathclyde … the Government’s time would be better spent in rethinking the way it relies on secondary legislation for implementing its policy objectives”.
I would add that if the Government do not do so, as has been said, fatal resolutions in this House—so rarely used over the last 60 years—are likely to become more frequent.
The Leader of the Opposition has proposed that we look at this whole question of parliamentary law-making. Why should we not do so? Committee after committee has said that there is a problem to be solved. The Government have an interest in avoiding fatal defeats on statutory instruments in the House of Lords. The Opposition have an interest in securing a procedure which they can legitimately use to defeat or amend statutory instruments in the House of Lords, while respecting the ultimate primacy of the House of Commons. I agree that in this respect the noble Lord, Lord Strathclyde’s proposals have been misunderstood and misinterpreted. He is not proposing that the House of Lords’ powers in relation to statutory instruments should be curbed. What he is proposing is to substitute a procedure which the House of Lords rarely dares to use for one that it could use much more frequently to cause the Government to reconsider or amend statutory instruments in a proper way.
I hope that in replying to this debate, the Leader will respond constructively to the Leader of the Opposition’s proposal. But let not the best be the enemy of the good. We also need to solve our problem over statutory instruments. We do not want yet another report about which nobody does anything.
Baroness Hollis of Heigham (Lab)
My Lords, first, my apologies for these glasses; my proper ones are somewhere in the Adriatic sea.
We, Lords and Commons alike, are increasingly failing the public. The Commons, of course, determines legislation but in the light of Lords scrutiny—with our delegated powers and scrutiny committees, and the time we spend debating SIs—we are better placed to do so.
The reason for our failure to the public can be described in two words: skeleton Bills. A skeleton Bill endows the Secretary of State with whatever powers he deems necessary, to do whatever he deems necessary, whenever he deems it necessary to do so. Bills, therefore, are future-proofed for any future Secretary of State in a future contingency to take any further future action without any further proper parliamentary scrutiny.
To take the recent skeleton Housing and Planning Bill, we floundered our way through it. When we probed to find out some detail about how many, how much—central issues one might think—the Minister could not say. She would say, “That will be in regs”. What would those regs contain? She would reply, “We don’t yet know”. Why not? She would say, “Because they are out to consultation”. When did that consultation start? We would be told, “Recently”. When will we get its findings? The reply: “Later, after the Bill becomes law”. We would ask, “Then how can we know what this clause will do?”. We cannot because the Minister cannot—not will not, but cannot—tell us. When regs finally appear, perhaps at odds with our limited understanding of the Bill, we cannot get at them; we can only bleat.
In other words, SIs are being abused in a way that destroys the very purpose of this House: our scrutiny role. As a Chamber we are not democratic, but we are rather useful. That is our justification. How, then, without seeking to challenge the primacy of the Commons, do we ensure that, through our scrutiny, the Government remain accountable to Parliament and therefore to the public, and do not seek to use SIs as a convenient shortcut through controversy?
I suggest four steps. First, consultation should precede—not parallel, let alone follow—legislation. We need to gather the expertise out there, expose policy intent and analyse impact beyond the half-baked gesture statistics we get served in lieu of a decent impact analysis. Secondly, following consultation, policy must be fully embedded and transparent in the Bill, and open to amendment, not left to SIs for future debate. Thirdly, SIs should therefore be relegated to their proper role—the adjustment of technical detail only, as the noble Lord, Lord Lisvane, has regularly argued. Finally, those affirmative and perhaps more controversial SIs that come before us must be effectively scrutinised. How? We cannot amend them, obviously, without engaging in a ping-pong that treats them like primary legislation. To vote against destroys; to regret is to be ignored. We cannot get at them.
Instead, we must have the power to pause. Over the last 15 years we have had several major reports proposing that the Lords might wish very occasionally to delay the automatic passage of an SI carrying a heavy public policy load and ask the Commons and the Government to think again, and, when they have, of course the Lords acquiesces. The usual channels would sort out urgent matters, including security, where delay would be wrong. We need that power to press the pause button for a meaningful period, perhaps for 28 sitting days. The Government could wait it out, and the SI would become effective. But they might also—especially if Commons Back-Benchers are increasingly perturbed, as with tax credits—use that delay, in my view rightly, to change their mind.
In summary, there must be no skeleton legislation. Consultation should precede, rather than parallel or follow, parliamentary scrutiny; otherwise what is the point? Policy is to be embedded in the Bill, not carried by subsequent ungetatable SIs, which should be restricted to technical and minor detail. Draft regs or written statements of what those regs will contain should be published between Second Reading and Committee so that Bills can, if necessary, be amended accordingly. It can be done. The noble Lord, Lord Freud, worked with Committee members during the passage of the then Welfare Reform Bill in 2011-12 to do precisely that. We worked on and developed regs together. It can be done—if, of course, the Lords Minister is a player, not merely a messenger.
Finally, affirmative regulations that this House believes carry previously unexplored or controversial policy content could be paused for further reflection—I suggest for 28 sitting days—by a delay Motion, which then accepts the primacy of the Government in the Commons. This set of proposals would allow us to scrutinise public legislation, as we should. Asking the other place sometimes to think again on SIs, as we do with primary legislation, would help to justify our role as an unelected House, while ensuring that the Commons retains the last word. It would produce infinitely clearer and more transparent legislation, and those whom that legislation affects will know where they stand from day one; that is impossible with regs out there somewhere in the ether, which may be drawn down or not. Above all, it would allow us to serve the public as we should, for we have no other purpose and no other reason as a House for our existence.
Lord Lang of Monkton (Con)
My Lords, like others, I begin by complimenting the noble Baroness, Lady Smith of Basildon, not only on the timely arrangement of this debate, but on much that she said, with which I find myself in agreement. I believe that her specific suggestions, and those of the noble Baroness, Lady Hollis, which we have just heard, are worthy of further consideration. I hope that this debate will generate a large number of such suggestions that will be considered very carefully.
I propose a slightly more general approach in my remarks. They are triggered as a result of the unsettling mood that exists on constitutional matters at present following the words of the gracious Speech referring to the sovereignty of Parliament and the primacy of the House of Commons. Why did it say that? What does it mean by it? Others have wrestled with this and reached different conclusions. They are both familiar concepts, but each is utterly different from the other, so the juxtaposition is strange: they are not two sides of the same coin; they do not complement each other, nor does one qualify the other. The sovereignty of Parliament is a familiar and profoundly important core principle of our constitution. It is the basis of the rule of law and of the authority of all our lawmaking. But the Parliament to which it refers is not the House of Commons, but the bicameral Parliament of two quite deliberately and desirably different Chambers, each playing its distinctive part and complementing the other. So the concept of Parliament is thus indivisible. It embraces both Houses.
The primacy of the House of Commons is a fact, but it exists de facto rather than de jure. It is built on the existence of the Parliament Acts, the unelected nature of this House and on various established practices and procedures—perhaps not so strongly nowadays on conventions, because they were broken, or certainly badly damaged, last October. That in itself raises problems that have to be addressed. Primacy, however, is not something for the Commons to claim. It is for this House to acknowledge and to volunteer, as we always do. Our restraint, when we adhere to it, is a vital component of what makes the system work. The reason it has broken, or has been crumbling for some time, is partly the loss of restraint in respect of our normal way of behaving on various occasions, but more so—this is the burden of what I want to say, even though it has already been touched on extensively by others—because of the poor quality of the legislation that has been fed into the system in recent times.
The Constitution Committee, which I have the honour to chair—although I stress that my remarks are of a personal nature—has been reviewing the draft of its sessional report for the year 2015-16. It pains me to say that we have found a litany of bad lawmaking habits. The then Scotland Bill was probably the most egregious, for a whole complicated list of reasons from beginning to end that I will not bore the House by developing today, but it is a shaming indictment of how to make laws. I hope it is never repeated in any shape or form with any other legislation. But there is also the growing abuse of delegated legislation, as referred to by others. We reviewed too high a number of vaguely worded Bills that conferred broad and undefined delegated powers on Ministers, with few restrictions, to achieve legislative objectives.
It has been suggested that an effort is now in place in government to improve the preparation and internal consideration of new legislation before publication. I hope that it happens; we have yet to see it. But whatever happened to Green Papers and White Papers, to pre-legislative scrutiny? Instead we have had a diet of skeleton Bills, Christmas tree Bills, very urgent Bills and Henry VIII powers like a sauce added to everything, followed by a flood of slippery secondary legislation, often hoping to slip though policy changes. The trend is not new with this Government. It is true that the numbers are not very much greater than they have been at any time in the last 20 years, but what is different is that they are longer and have more substantive contents, including the trend towards policy development.
I could go on about this but in setting up the Strathclyde review, Her Majesty’s Government blew their own cover when they described its purpose as being,
“to secure their business in Parliament”.
They went on to refer to,
“the decisive role of the elected House of Commons in relation to its primacy on financial matters, and secondary legislation”.—[Official Report, Commons, 4/11/15; col. 25WS.]
These two quotations are, in the first case, a clear statement not about the constitutional proprietaries, where they may have had a case of some sort, but about the Executive getting their way by whatever means they could deploy; and, in the second, at best a highly polished gloss of the true position and at worst a distortion of it.
My noble friend Lord Strathclyde accused my committee of castigating him. I am bound to say we did not; we actually let him off the hook because our conclusion was that he had been asked the wrong question and therefore his answer was not really relevant to the issues before us. Our committee and two others separately reached that view. If the words I quoted explain what was meant by the cryptic reference in the gracious Speech to the sovereignty of Parliament and the primacy of the House of Commons, I suggest that the Government might be about to take the wrong kind of action.
It may be that there is a case for reforming the relative powers of the two Houses. It seems, for example, slightly bizarre that this House can amend primary legislation but has power only to reject secondary legislation. Let such matters be considered in the proper and unhurried way, but it is essential to preserve the present balance of powers between the two Houses. We may be faced with some proposals to codify in some way the damaged convention system. If that can be done in a way that maintains the delicate balance of powers between the two Houses, let us at least examine it—though I am sceptical that a way will be found that does not undermine the standing of this House.
However, if the Government come forward with changes simply to make it easier to get their business, that is quite another matter. That would provoke a strong and sustained reaction here. At the end of the day, Governments must get their business. Overall, the present balance of powers provides for that, and so does the general will of this House. The issue should not be sovereignty, the balance of power or primacy but the nature and quality of the legislation laid before Parliament by the Executive. That deserves close scrutiny. It is high time the Government did a better job.
Lord Richard
My Lords, I agree with a large part of the speech that the noble Lord, Lord Lang, just delivered. It is interesting the way in which this debate is developing. There seems to be a genuinely cross-party approach to what is clearly a major problem. That is a good thing. I congratulate my noble friend the Leader of the Opposition on bringing this subject forward at this stage. When I saw it on the Order Paper I thought it would be a rerun of what we debated on the Queen’s Speech—as somebody said, déjà vu all over again. It could have been, but listening to the debate it has taken a different tack.
Before I turn to the Strathclyde review, I will just put some of this argument into historical context. It is interesting to look at the figures on defeats of delegated legislation. In the calendar years from 1950 to 2015 there were five government defeats on fatal Motions. The first was in 1968 against the Labour Government, there were two against the Labour Government in 2000, one in 2007 again against the Labour Government, and one in 2012 against the coalition Government. My arithmetic seems to indicate that that is 4:1. In the same period, there were 27 non-fatal Motions. There was one in 1977 and one in 1978, both against the Labour Government. One in 1983 was against the Conservatives. One in 1985, one in 1992, two in 1993 and one in 1995 were all against Conservative Governments. Then the great change happens. There was one in 1998, four in 2003, two in 2005, one in 2007, three in 2009 and three in 2010, all against Labour Governments. Again, if you add it up, there were 11 non-fatal Motions against Conservative and coalition Governments and 16 against Labour Governments. In addition there was a government defeat on a Motion moved by the noble Baroness, Lady Hanham, on 13 July 2009. Whether the Motions were fatal or non-fatal, the vast majority have come from the Conservative side of this House and not the Labour side. Almost all of them came, too, at a time when the Labour Party was in the distinct minority here in the House of Lords. Indeed, for a large part of that time, we were not even the largest single party. So let us have no more of this nonsense about the Labour Party being more rigorous or awkward in the way it approaches statutory instruments. That is not true. The facts lead precisely in the opposite direction.
Faced with that, we should put the Strathclyde proposals in a rather more severe context. I repeat what I have said in this House before—it has been repeated today—that the only justification for removing the power to defeat a statutory instrument here is that the Government then legislate in a proper way. By that, I mean that they use primary legislation for dealing with matters of policy and use statutory instruments for what they were designed for: the implementation of that policy. You cannot expect this House to remain silent in the face of legislation such as the recent housing Bill. If the Government insist on sending up skeleton legislation with enormous discretion given to Ministers as to how to put the flesh on the bones, this House cannot be expected to sit down and let that happen. That would be a clear breach of the spirit if not the terms of the Parliament Act.
Of course, that Act gives the Government the authority to disregard the views of the House of Lords in relation to primary legislation but not to secondary legislation. An attempt to use that distinction to evade the possibility of constitutional delay by this House would be a distortion of the existing constitutional arrangements between the two Houses. Nor should it be forgotten that this argument is really not about the Commons versus the Lords; it is about the Government versus Parliament. On this issue, the views of the House of Lords really cannot be disregarded.
One thing that has emerged in this debate is that there is a consciousness here of a very real problem in the quality of legislation as it leaves the House of Commons and comes up to your Lordships’ House, in the fact that it is not properly scrutinised in the House of Commons, and in that the drafting these days seems to be much less precise and cogent than it was years ago. Many years ago, in the late 1960s and early 1970s I sat on a committee. I have the same sort of memory as the noble Lord, Lord Butler. The committee was chaired by—I cannot remember his name, but it was a committee on drafting legislation. Ah, it was chaired by Lord Renton. We sat for a long time, took a great deal of evidence, heard from parliamentary draftsmen and heaven knows who else, and produced an erudite report asking for certain things to happen. Of course, none of it has taken place and that was nearly 50 years ago.
I am not optimistic that another such committee would produce more fruitful or rapid results but I am certain that such a committee ought to be set up. Given the quality of the legislation as it comes up from the House of Commons to this House, the way in which the Government now use statutory instruments rather than primary legislation, and the way in which that claim of financial privilege is used by the Government, there are issues here that deserve full consideration, and on a cross-party basis. I agree with my noble friend Lord Cunningham that there is no reason at all why this should not start up here. We do not need to wait for the House of Commons to do this. A committee of your Lordships’ House considering this matter would be a very good start. I hope that when the Minister comes to reply she will deal with this. I raised it in the debate on the Queen’s Speech but, notably, it was totally not dealt with. Perhaps today will be better.
Lord Judge (CB)
My Lords, I wonder how much longer we can go on talking about these issues. I have read report after report; they are all very clear and unequivocal. We are having another discussion today—I entirely agree with the noble Baroness, Lady Smith of Basildon—and we can have some more talking. However, the question is: when are we going to actually achieve something before our constitutional arrangements disappear into some vague unknown future?
I want to address one issue today, because there is not time to address everything else—it is one I have raised with your Lordships before, and some noble Lords, at any rate, patiently listened to me. Why on earth do we in this House agree to Henry VIII clauses? Why do we? It is our responsibility, too. You can hardly say about a Henry VIII clause, “Ah, well, this has been very carefully considered in the Commons. They have scrutinised it and come to the conclusion that this is an appropriate way to serve the public interest, and therefore we should hold back”. The whole point about Henry VIII clauses is that there is no scrutiny. They are created not for immediate effect but to allow for future effect. So there is no scrutiny of them. Why do we all agree to them?
I am quite sure it will be said—perhaps today by the Leader of the House, but certainly by somebody—“Ah, you are very new here. Don’t you realise that Henry VIII clauses have been going on for years and years?”. The short answer is that I am new here and Henry VIII clauses have been going on for years and years, but they are going on more and more, and more and more rapidly. We are becoming so used to them that we are not even appreciating what they stand for. They stand for dispensing with, or suspending, an Act of Parliament by ministerial decision. That simply will not do. The function of Parliament is historically, and stemmed from, the need to control the king—now the Executive. That is one of the functions of both Houses. The Executive nowadays—I am not making a comment about this particular Executive, the last one, the one before or the one before that—hate to be told no, so the Executive say, and imply, and occasionally say enough to make it clear that this is what they think, that the function of Parliament is to do what the Executive wish it to do. But that is not our function, and never has been. If we allow this to go on, it is what it will become.
I mentioned the Childcare Act on a previous occasion. We have agreed to give power to a Minister by delegated legislation—secondary legislation—to give somebody, anybody the Minister may choose 20 years from now, the power to dispense with a statute: any statute, one that exists now or one that will exist 10 years from now. Why on earth did we do it, and to what advantage? Why was it needed for government business? It was not; it cannot have been. If the business required the Government to act now, the provision could have been clearly set out. Let us consider the wonderful Bus Services Bill. I ask noble Lords to please read it. They will find in Clause 22 a wonderful general Henry VIII power. What is that for? The Children and Social Work Bill to which the noble Baroness, Lady Smith, referred is more complex. Its provisions include that a hybrid instrument is to proceed through the legislative process as if it,
“were not a hybrid instrument”.
What on earth is that for? Guess how many Henry VIII powers it has? I tired after Clause 35, Clause 39, Clause 42 and Clause 43. They are all Henry VIII powers. It is a confetti of Henry VIII powers. Why will we enact them? Why will we agree? Incidentally, the Bill also proposes in Clause 34 that a Minister may create a criminal offence.
I find the idea that secondary legislation can dispense with, or suspend, primary legislation to be a constitutional—I must be very careful how I put this; shall we say—shambles. That is what it is. I am not asking a rhetorical question when I say: why should Parliament—both Houses—dish out powers to a future Executive of any political colour, elected by a view of the country that is taken at a particular time, to dispense with a statute? We do not know what lies ahead. We must not sit back and say, “This is England, Ireland, Scotland and Wales; we are all very civilised. We will never end up with the sort of Government who might misuse their autocratic powers”. Well, we might. Democracy works in funny ways. Austria came very close very recently. One must not ignore these things.
I do not want to go on too long and will say just this. After all the discussion we have had today and have had so far, all the further inquiries, additional papers and the examination of the interests, why cannot we in this House ask this simple question: why should we ever pass Henry VIII clauses?
Baroness Andrews (Lab)
My Lords, it is a great pleasure to follow the noble and learned Lord, Lord Judge. I know that that very important and provocative question will be studied closely by the Delegated Powers and Regulatory Reform Committee, which is always in the front line when it comes to asking why we accept provisions.
It is a great pleasure to take part in this debate. I want to reflect on the wider issues raised by the second part of the debate’s title: on the need for Parliament to have,
“full details of all legislation that it is asked to consider”.
This is really the question about the relationship between knowledge and power, and is the basis on which we conduct our scrutiny effectively. I raise this question because I have had the privilege of being a member of the Delegated Powers and Regulatory Reform Committee and am now a member of the Secondary Legislation Scrutiny Committee, which is wonderfully chaired by the noble Lord, Lord Trefgarne.
I have had a curious career. I started in Parliament as a parliamentary clerk in the House of Commons and ended up as a Minister in this House, with many parliamentary pit stops in between. I have seen the erosion of parliamentary power from many different perspectives, and have been concerned for a long time while understanding the yearning of all Ministers to grab more power. However, I believe that in the lifetime of this Government we have seen a step change in the pursuit of power.
The debate on the noble Lord’s report became increasingly surreal as each of the four committees wrestled with what was essentially a false premise, as the noble Lord, Lord Lang, has already said—that is, that this House exceeded its powers in relation to secondary legislation and needed to be restrained from doing so in the future. There is a predictable consistency in those four reports’ demolishing of the argument. However, for me, what was equally significant was the noble Lord’s advice to government that they should,
“take steps to ensure that ... too much is not left for implementation by statutory instrument”.
My experience is that Governments have never been very good at drafting legislation, and have certainly got worse. The law of unintended consequences never sleeps. However, there is a difference between things turning out differently because a genuine mistake has been made—Professor Anthony King’s book is full of such examples—and bringing legislation before us which is simply premature, incomplete, obscure, or indifferent to evidence and impact, so much so that we cannot, however diligent we are, advise those who will be affected by it on how the law is actually going to work, let alone warn them or achieve some mitigation. We have already had the examples given several times this evening of the Childcare Act—an egregious example of that—the Housing and Planning Act and the Cities and Local Government Devolution Act, all eclipsed to an extent by the infamous case of tax credits. In fact, on coming into office, this Government signalled their intention to break some basic rules of engagement between Government and Parliament very early on.
I so wish that the noble and learned Lord, Lord Judge, had been in this House when we were debating the then Public Bodies Bill in 2010 and the then Deregulation Bill in 2013. The notorious Public Bodies Bill, which attempted to abolish, remove and restrict arm’s-length bodies entirely through Henry VIII powers, was to an extent stopped in its tracks and we were able to mitigate that. What astonished me was that, in 2013, there was a more outrageous grab for power. Clause 14 of the Deregulation Bill, which was introduced with great brio by the Minister Kenneth Clarke, would have caused legislation that was,
“no longer of practical use”—
in the terms of the Bill—to cease to have effect. He described it as,
“a quick and tidy dustbin”,
and was rather bemused when it was thrown out by the pre-legislation committee.
What is it that we in this House depend on to defend the democratic process and challenge Government? It is principally our two scrutiny committees, but these committees are now routinely faced by departments—aided and abetted by the Cabinet Office—which bring forward skeleton Bills, or “mission statements”, as described by the DPRRC. The Bills create a host of new powers for Ministers, as we have heard. They bring forward regulations that are far removed from technical or administrative issues, although officials persist in defending and describing them as such. They design and implement new policies by introducing new and basic definitions, such as “coasting schools”, in the education legislation; new criminal offences scattered through secondary legislation; and new institutions designed to implement secondary legislation. The fact that so few regulations are ever available for the House to see does real damage, I believe, to public policy and public trust in the process.
Last year, the Government had the excuse that they did not expect to have to introduce a manifesto, and I found that unacceptable. I find it far less acceptable that, this year, we are already faced with legislation that does the same. We may not be able to do much about ministerial power per se, but we should at least be able in this House to insist on transparency, integrity and competence.
Such was the concern of the Secondary Legislation Scrutiny Committee in 2013 to strengthen the ability of the House to challenge inadequate and misleading SIs that it proposed new grounds for reporting SIs for the attention of the House because,
“the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation”.
That is so fundamental. This year, 19% of the reported SIs fell into that category. We have wide frustration, which we have set out in our latest annual report, about the failure to ensure timely, considerate and effective consultation processes, some of which even misreport findings; poor, basically inaccurate Explanatory Memorandums; and minimal or no information on impact. There is a succession of examples that I could refer to, including around the most contentious legislation, such as social security and legal aid, where we cannot form a view as to whether the regulations would operate as intended. We have invited Ministers to come and defend this failure—they all promise to do better; very few of them show that they can.
We have heard a raft of prescriptions as to what is needed. I support all that—certainly pre-legislative scrutiny—and I would suggest that no Report stage should start before we have statutory instruments to discuss. I also urge for better training and support for the Civil Service and Bill teams and an end to the cuts that have debilitated the Civil Service and the quality of advice.
There will always be those who say that nothing will improve because it was ever thus, but I do not believe it. There is a natural tension between Government and Parliament and it is precisely in that contested space that the proper balance between Government and Parliament should be held. That is where the role of this House is at its most critical and why the conversation that we need should be had between both Houses, and be had urgently.
Lord Cormack (Con)
My Lords, it is a pleasure to follow the noble Baroness, Lady Andrews, who brings a wealth of experience of Parliament from different aspects. I begin, as many others have, by congratulating the noble Baroness, Lady Smith of Basildon, on the calm, moderate, sensitive and sensible way in which she introduced her Motion. What has been remarkable about this debate is that there is an emerging consensus. It has not been put into specific words—I will try to make an attempt at that.
We are dealing with the implicit tension in a system where the Executive are drawn from the legislature and then expect the legislature to be their creature. This has been a tendency under Governments of all parties—the Labour Government, the present Government, the coalition Government. One sees the way in which successive Governments try to deal with this subject and the excessive payroll vote in the House of Commons by those who find themselves politically emasculated and those who are very ambitious, who are always a little reluctant to cross swords with the masters of the day. We see it specifically in the background to today’s debate.
I have enormous and genuine regard and respect for my noble friend Lord Strathclyde, but his appointment was a transgression of the balance that should exist between the Executive and the legislature. It was the Executive who told my noble friend to sort out your Lordships’ House. He came forward with a number of proposals based on his great knowledge and came to a conclusion with which, apart from the legislative aspect, many of us could have a degree of sympathy—namely, that our powers should certainly not be removed but perhaps, in respect of statutory instruments, should be to a degree curtailed. We also have to recognise that this comes in the wake of a specific event and, as the Commons committee put it very succinctly,
“there was in fact no constitutional crisis arising from the defeat of the Tax Credits measure”.
But the Government made one. Subsequently, the Government decided not to persist with the tax credits measure—a very sensible move, in my opinion.
We have to recognise these things and to try to come to a sensible, balanced and moderate conclusion. I respectfully suggest to your Lordships’ House that we take on the implicit—and some explicit—suggestions of the noble Baroness, Lady Smith of Basildon, and set up a Burns-type committee with a strictly defined remit and timetable to look at the whole issue of secondary legislation, particularly in the light of the apposite and telling comments of the noble and learned Lord, Lord Judge. I thought that he made an exceptionally splendid speech. That committee could report back to your Lordships’ House and, following that, I would myself very much like to see a proper Joint Committee of both Houses looking at the way in which secondary legislation is dealt with both in the other place and here.
The most encouraging remark this afternoon was made by the noble Baroness, Lady Smith of Newnham, when she paid a degree of respect to the Salisbury convention. We have to recognise that our recent problems—the noble Baroness, Lady Smith of Basildon, said that we have never been in this situation before with a Conservative Government—are exacerbated by the disproportionate representation of Liberal Democrat Peers. I say to them, many of whom I count among my good friends, that they recognise that too. They might even consider not putting more than 50 Members in the Division Lobby at any one time. That would go a long way to dealing with many of the problems.
Above all, we must remember that no rules have been broken. The noble Baroness, Lady Hollis, made an excellent speech today. It was her Motion that was carried and it did not transgress anything. My noble friend Lord Strathclyde mutters sotto voce, “Of course it did”. No, it did not, because if we did what he wanted we would have a power to amend statutory legislation, and she was merely saying, “Take a bit more time”. That is all she was saying and that would have been very sensible. We also have to remember that no legislation was lost in the previous Session.
In conclusion, hard cases make very bad law, as we all know. It is very wrong to consider introducing legislation to change perceived transgressions when there was no actual transgression. I think there is an emerging, calming consensus, thanks to the excellent speech of the noble Baroness, Lady Smith of Basildon. Let us look at these things in a calm, reflective light. Let us give to a committee of your Lordships’ House a particular remit and timescale, and then let us get together with our colleagues in another place to try to ensure that secondary legislation, which should never include Henry VIII clauses, is properly examined in both Houses and is capable of amendment in both.
Lord Haskel (Lab)
My Lords, like other noble Lords, I draw your Lordships’ attention to the declining quality of legislation presented to us. I raise this not only because we can do something about it—as the noble Lord, Lord Lang, suggested, we have to do something about it—but because, as standards decline, there is more opportunity to ignore or even break the rules that have been devised over time to protect the public good. I thank my noble friend for moving this Motion and for her sensible proposals.
Like my noble friend Lady Andrews, my concern arises from my past membership of the Delegated Powers Committee and my current membership of the Secondary Legislation Scrutiny Committee, chaired by the noble Lord, Lord Trefgarne. Both these committees have witnessed the decline of which I speak. When scrutinising secondary legislation, quite rightly we look not only at what it says but why it is required, how it is explained and what its impact will be—as my noble friend Lady Smith said, whether it is fit for purpose. More and more the committee has to draw your Lordships’ attention to inadequacies in all these aspects.
We recently drew your Lordships’ attention to an order relating to standards in the welfare of livestock. In that order, regulations were to be withdrawn in favour of a voluntary welfare code based on consultation, which the Minister said would improve welfare. But the consultation said exactly the opposite. When we pointed this out, Defra withdrew the order. Do the Government consider this a defeat or the House doing its work?
Almost one in five of the statutory instruments reported to the House in the previous Session was on the grounds of inadequate explanation. Indeed, the SI relating to tax credits which precipitated the report of the noble Lord, Lord Strathclyde, went back to the Treasury twice because of deficiencies in the Explanatory Memorandum—deficiencies in the explanation as to why it was necessary to use secondary legislation to introduce this new and significant matter.
Why is this not picked up in the other place? As has been pointed out in many reports, not least in the responses to the Strathclyde review, there are so many other pressures on Members of Parliament that they have little time to look at secondary legislation. Indeed, only selected parts of primary legislation are scrutinised, partly because virtually every major Bill is timetabled—not, I think, an invention of the Blair Government, as the noble Lord, Lord Strathclyde, suggested.
The noble Lord, Lord Strathclyde, complained about the number of government defeats. Does he not agree that these defeats are not only because of disagreements over policy but because the legislation is incomplete, not properly prepared and not thought through, as most speakers in this debate have suggested?
What can be done? As other noble Lords have said, there is a Cabinet Office Guide to Making Legislation and instructions that should be given to parliamentary counsel. Are these instructions carried out? There is an understanding of the need for Green Papers, White Papers, draft Bills and a proposed schedule of secondary legislation. Is the problem lack of staff? Have we lost people with the expertise, analytical skills and experience in preparing legislation? Is this the result of budget cuts in the Civil Service?
One way of making up for this loss would be to do what lots of other people are doing—turn to artificial intelligence. As my noble friend Lady Smith mentioned, in the debate on the Queen’s Speech I drew your Lordships’ attention to this possibility and it created a lot of interest on social media. I made the point that the Government’s Science and Technology Facilities Council at Hartree has a five-year collaboration with Watson at IBM. These two organisations are at the forefront of developments in artificial intelligence. I pointed out that we already have machines that can read, prepare and analyse clauses in loan agreements and contracts of sale. With this experience and the excellence of the two organisations, it must be possible to digitalise and code the Cabinet Office instructions on legislation to at least make sure that every element of policy explanation and consultation is present. Having developed this technology, it could be offered for sale to virtually every other legislature in the world. I hope Ministers do not think for one moment that this suggestion is the start of the slippery slope of Ministers being replaced by robots—not at all.
That is just one way of dealing with the problem. Perhaps the Government have other ideas. We have to get the preparation and procedure of legislation right because, if we do not, the low standards will provide an opportunity for poor or bad legislation which will undermine our culture of strong, fair-minded and responsible government, scrutinised by Parliament to make it fair-minded. It will undermine those rules devised to protect the public good, and we will all be the losers.
Lord Trefgarne (Con)
My Lords, as chairman of your Lordships’ Secondary Legislation Scrutiny Committee, I thought it right to make a brief intervention in this debate. I emphasise that what I am going to say is my personal view, although I rather think that most of my views will be shared by other members of the committee.
I want particularly to deal with the matter that arose after 26 October last year when your Lordships rejected the tax credits statutory instrument. I recognise that there is room for more than one respectable view as to whether that was a breach of the convention that existed—but there is certainly a serious body of opinion that takes that view, which, frankly, is one that I share. So the question is: what do we now do about that? My noble friend Lord Strathclyde has reported. His report has not been universally acclaimed but has been widely appreciated for the detail into which it went. He has raised some important possibilities which the Government will no doubt carefully consider and to which they will respond in due course—maybe even this afternoon.
Before we, or the Government, decide upon bringing in new legislation, we should have an attempt at re-establishing the convention which some of us, at least, believed existed before October last year. I hope that that can be done. It would need the acquiescence of all the major political groupings in your Lordships’ House, including of course the Opposition, as led by the noble Baroness, Lady Smith, and the Liberal Democrats under the noble and learned Lord, Lord Wallace. I believe that the Liberal Democrats take it that they are not party to the existing convention—or what was the existing convention. If they are not party to it, they will have to be party to the new one if that is what is decided upon. So indeed will the Cross-Benchers—but how that can be achieved I am not so sure, because of course they take the view that they are not united on anything, so that is a matter on which they would have to decide. The noble and learned Lord, Lord Hope, the Convenor of the Cross Benches, would have to decide what assurances he could give as to the position of his colleagues on the Cross Benches if that were to proceed.
I hesitate to suggest that the right reverend Prelates should have to take part in all of this. Perhaps that is a step too far—but they were of course party to the proceedings in 1215, when his late Majesty King John was persuaded to sign the Magna Carta. Apparently that is not part of the proceedings nowadays. If it is not possible to reach a new agreement—
Lord Cunningham of Felling
I am grateful to the noble Lord and do not want to take up too much of his time, but since he mentioned the Lib Dems and the Cross-Benchers, they were represented on the Joint Committee on Conventions and voted unanimously for its conclusions. They supported its conclusions on the Floor of this House, so they are committed to the convention.
Lord Trefgarne
I am very glad to hear that, but I think that there will need to be a new procedure now. If he does not mind me saying so, the noble Lord’s committee, to which he referred, sat a number of years ago and the procedure therefore needs to be re-established following the events of October last year. The new convention will need to set out the understanding that only in the most exceptional circumstances would your Lordships want to vote against a statutory instrument. I would wish to add that a Motion for a significant delay would be very similar to a Motion to negate a statutory instrument. I dare say that the convention would need to recognise that point.
I will make one other, more current observation. It relates to the supporting documentation for statutory instruments, which my committee considers nowadays. A number of noble Lords have already referred to this. I have to say that at least 10% of the Explanatory Memoranda and other supporting documentation which we receive is inadequate or unsatisfactory. We often have to ask for it to be rewritten or reproduced. I regret that that is the case but I hope your Lordships will understand that it is an important part of the work that we do. I would like to exempt my noble friend Lord Freud from all that. He has recently gone to great lengths to persuade his department to improve its supporting documentation and I very much appreciate what he has been able to do. I believe that my colleagues on the Select Committee appreciate that likewise.
Baroness Thornton (Lab)
My Lords, I speak in this debate as something of what might be called a jobbing legislator after nine years on the Back Benches, a couple of years as a Whip and a Minister and five years as a Front-Bench spokesperson. While I cannot claim the constitutional expertise of the noble Lords, Lord Norton and Lord Cormack, the noble and learned Lord, Lord Judge, or my noble friends Lord Richard and Lady Hollis, I am now back on the Back Benches of your Lordships’ House and hope that my journey might be useful in our current discussions.
I suppose the theme of this debate is that we really have to do things better. Surely it is not beyond the wit of this great Parliament and the people in it to revise, scrutinise and negotiate better legislation. If the noble Baroness the Leader of the House made a list of every one of the sensible suggestions that have been made today, that would be a very good starting point. Although I found the notes from the Library partially useful, I did not buy the overemphasis on the Strathclyde review, because the overweening power of the Executive and the battle to carry out proper and effective parliamentary scrutiny, and the tension between those two, are not new. It has to be said—I believe this and I think others may have said it—that we have too much legislation. I started to feel that this was the case during my own party’s period in government and have believed it ever since. Indeed, like other noble Lords, while reflecting on what to raise in the debate I noticed in my journey through various uses of Google and the parliamentary database that a monarch in the 14th century—I think that it was one of the Edwards—was also bemoaning the amount of legislation going through Parliament, so there is nothing new in that.
During the years that my party was in government, the opposition parties regularly complained about half-baked legislation, and sometimes they were right. But we are in new territory today, where much of the legislation in front of us is not half-baked but totally uncooked. On the question of why legislation and policy are being brought forward and presented to Parliament in such an abysmal state, I wonder whether part of the answer might be the quality standards and perhaps the economies made to the parliamentary draftsmen’s service.
As I scrolled around trying to think about how to express this, I remembered a year of sitting with parliamentary draftsmen and their service in the drafting of what became the Equality Act 2010 before it was presented to Parliament. I found it a remarkable and very wonderful experience, not only because they were extremely clever, considered and diligent but because they produced a Bill that we successfully navigated through this House, with cross-party support, just before the general election. Can the Minister say whether the draftsmen’s office is being properly funded and supported?
I came across a poem drafted by a parliamentary draftsman in 1947, which of course is unnamed. It says:
“I’m the parliamentary draftsman
I compose the country’s laws,
And of half the litigation
I’m undoubtedly the cause
I employ a kind of English
Which is hard to understand.
Though the purists do not like it,
All the lawyers think it’s grand”.
There is a serious question about the quality and standards of the legislation and draft legislation that we are presented with.
I have a second point, which was alluded to by my noble friend Lord Haskel. The internet has revolutionised who accesses the law and Parliament, and who watches us as we go about our work. Just as people are much more ready to check the advice from their GP against medical advice available online, people are also looking to what we do here in Parliament and the legislation that we produce. Whereas 20 years ago you might have needed access to lots of physical volumes to understand and access law, people can now type “data” or “human” into Google and be two clicks away from a copy of the Data Protection Act or the Human Rights Act, and the same goes for any other legislation. I believe that 2 million to 3 million unique visitors are accessing statutes through the National Archives every month. It seems to me that we need to be less obscure, and that there is a need for more clarity about how we express ourselves and how we incentivise our departments, if they need to legislate and it is too complicated, to consider how to express the legislation in a language that we, including the people watching us and how we work and who sometimes want to comment on it and access it, can all understand.
I gather that, in 2013, good law champions were created in every government department, and new web-based drafting tools were introduced, with an emphasis on partnership, including talking and listening more to users. Do these still exist? If they do, is anybody taking any notice of them?
Those are two questions, but I will also say something briefly to the noble and learned Lord, Lord Judge, about Henry VIII clauses. When I came into the House in 1998, the Government were accused of putting a Henry VIII clause in a piece of legislation. There was not quite a gasp of disapproval in your Lordships’ House, but the Government were certainly pressed very severely on such occasions, and as a result often took the issue away and rethought it, although of course my Government did not have a majority in the House at the time.
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.
Lord Woolmer of Leeds (Lab)
My Lords, it is a pleasure to follow the noble Lord, Lord Norton. I agreed with an enormous number of his remarks.
The House of Lords has an important constitutional obligation to consider these matters dispassionately, in a non-partisan way. That has been the overwhelming spirit of today’s discussions. The Government of the day, of any political persuasion, will always want to get their business through as readily as possible. That cannot be the starting point from which the Houses of Parliament consider how they scrutinise legislation; it is an important element, but it cannot be the purpose of scrutiny.
The issue of secondary legislation has loomed large. As has been said by many noble Lords today, the root cause lies in primary legislation, but secondary legislation gives the Executive enormous powers, with much less scrutiny than primary legislation. Most people outside Westminster do not understand the difference between primary and secondary. A large amounts of the legislation that affects people in their everyday lives is secondary legislation. Those changes can make an enormous difference to people’s lives, and the tax credits statutory instrument is a very good example of that. So the primary legislation is the root cause, but the secondary legislation that results from it has been granted secondary legislation status by both Houses; that gives the Government of the day substantial powers, with less scrutiny than otherwise. Therefore, the role of both Houses in scrutinising secondary legislation takes on rather more importance than one would imagine. With primary legislation, the House can ultimately reject the Bill or an element of the Bill; it can then be subject to the Parliament Act, but that is a substantial and very rarely used power. This House has the power to reject secondary legislation, but has done so only five or six times in 50 or 60 years. Nobody outside Parliament would regard that as excessive or dangerous use of the powers of this House.
The use of powers to reject is very rare indeed. It requires some care by any Government—and it could be a Government with my party in control, the current Government or some future Government. Governments will always be frustrated by that use, if it happens, but that is not the basis for wanting to change the powers. Woe betide any Government who say that they will take away the power of a House of Parliament because once in so many years it used that power. That would be an abuse of power on the part of government—and I hope that the Government think very carefully before they use one case in a long time to say that they will change the constitutional position of this House.
Briefly, I turn to secondary legislation. I had the privilege—although I did not think of it as a privilege when I was first appointed—of being on the Secondary Legislation Scrutiny Committee for three years. I have just finished, much to the delight of the postman who delivers the mail to my house in Leeds. I learned a number of things from it; I learned how important secondary legislation is, compared to what I realised before I was on the committee. I always realised it on an issue that I was interested in, but I did not realise that it was important for so many things. I also realised how important the role of this House is in scrutinising that secondary legislation. As the Public Administration Committee said in its report, it is the House of Lords to which Parliament owes a debt for scrutiny.
We scrutinise around an average of 1,000 instruments a year—80% negative and 20% affirmative. We refer only about 10% of them to the House to debate. The noble Lord, Lord Wakeham, said, incorrectly, in his speech on the Queen’s Speech that the House of Commons considered and approved secondary legislation before the House of Lords, but that is not true. Secondary legislation goes to both Houses from the Government, not to this House from the House of Commons. We have parallel duties to consider it. Indeed, 10% or 11% of secondary legislation is considered and approved by this House before the House of Commons. We do a very important job.
Finally, I return to the larger issue. The Strathclyde report suggests what I call, perhaps unkindly, the snake oil solution of letting this House reject secondary legislation once, with the House of Commons then being able to override it. My experience of the House of Commons is not large, but my colleagues who were in the House of Commons tell me that that will not work. Overwhelmingly, Governments use their majority in the House of Commons to get their business through. The idea that this House will reject once, then the House of Commons will consider carefully what was said, and that there will be substantial debates and a response from the Minister is simply hocus pocus—it is not true.
Lord Campbell-Savours (Lab)
My Lords, the words in the Motion,
“Parliament having full details of all legislation that it is asked to consider”,
have particular resonance for those of us who sat through 45 hours of Committee proceedings on the Housing Bill. That Bill is all I want to talk about today. It was a classic case of abuse in the production of legislation. Certainly, it is the reason for today’s debate. It was a skeleton Bill, as defined in the 2005 report by the Joint Committee on Conventions, which was chaired by my noble friend Lord Cunningham of Felling. It was a Bill riddled with references to the need for secondary legislation. On my count, between the Bill and its schedules, there were, potentially, 81 statutory instruments covering more than 100 separate issues, all to be determined following Royal Assent. Almost every one of them covered an area of controversy. I have heard it said in the Commons that the reason the Government chose to introduce the Bill in this way, avoiding providing details covering the more controversial areas, was because with their small majority the Government were concerned that too much detail during Commons stages could have provoked difficulties on their own Benches and prejudiced the early passage of the Bill. I suspect that will not be the last time that happens.
An indicator of what happens when Parliament is denied full details on legislation came with an amendment to the Bill introduced in the Commons on the last day in Committee after 17 sessions of consideration. The amendment was introduced to begin the process of phasing out long-term council tenancies, which are very much a feature of tenancies outside London, and replacing them with two-year to five-year tenancies. This proposal was never in the original Bill, being too controversial, and was introduced without even an impact assessment. The approach the Government took during Commons proceedings avoided a constituency backlash on that matter from Members of the other House.
There were potentially whole sections of the Bill that we simply could not amend, leaving us with only fatal Motions, which some of us find difficult to support on principle, which I will come to later. I shall give an example. The Bill, under statutory instruments, gave councils the power to require all tenants to declare household incomes. The Explanatory Notes stated that,
“a process of verification may be needed to ensure that declarations of income are correct … The Secretary of State must obtain the consent of HMRC before making arrangements with a private body to fulfil this function”.
If you are a council tenant not in receipt of any benefit—in other words, if you are not means-tested—whatever your income, and particularly if you have a gross total household income, outside London, of more than £30,000, or of more than £40,000 in London, a private company, in the form of Capita, could access your income and potentially breach your privacy as part of the verification process without your specific consent. I believe this is an unprecedented use of regulations with little detail in the Bill, particularly on the process of verification, which we should have been able to consider during the proceedings and which we cannot amend in a statutory instrument.
I have to admit that the Ministers on the Bill, one of whom is in her place today, valiantly sought to defend the indefensible by assuring the House that the regulations and, if necessary, guidance would be introduced following a consultation that was to take place at a later stage. Nevertheless, the truth is that the Bill was premature. Whether you agree with its provisions or not, because it was so controversial, it should not have been introduced until the consultation on its contentious provisions had been completed. In its final hours in this House, the Bill was the subject of almost unparalleled protest on the Floor, all to be found in Hansard on 23 March.
I return to the issue of fatal Motions on SIs, on which I have very strong views. Behind closed doors in my Labour Party group meetings, I have consistently argued against voting on fatals. To me, as a former Member of the House of Commons, it was a matter of great principle. I confess that, against my party line, I declined to vote in the tax credit regulations Division on the basis that I regarded the amendment as fatal. However, after years of arguing on principle, my experience on the housing Bill changed my mind. If the Government want to play silly games with skeleton Bills, then I am afraid the Opposition, despite being unelected, have no option but to retaliate by blocking statutory instruments. I deeply regret that.
Furthermore and finally, I do not see how we can possibly interfere in the current arrangements for handling SIs until we have established a process for determining a proper deposition of what constitutes “exceptional circumstances”, as set out in the 2006 report by my noble friend, and have received a commitment from the Government to avoid the use and indeed abuse of skeleton Bills in the way that happened on the Housing and Planning Bill.
Lord Wakeham (Con)
My Lords, it is one of the great strengths of the House of Lords that a considerable amount of thinking seems to go on between one debate on a subject and the next time that it comes up. That is a credit to everyone, but today I think credit is due particularly to the Leader of the Opposition. A great deal of what she had to say was very sensible, and I am very glad that she said it. This goes back to what I said in the Queen’s Speech debate: I wanted a proper discussion on these matters and I wanted it to be led by the Opposition. Governments have the chance to bring in legislation if they want, but Oppositions are the people who have the power and the opportunity to persuade people that we are not doing things the right way and that we ought to change them. So I am full of praise for the start of the debate. I am hesitant to say a lot of the things that I might otherwise have said, because I do not want in any way to prejudice a proper discussion of all these matters, which I think is not best done in the atmosphere of the House.
However, we are not quite as bad as some people have made out. If we look back to the debate on 24 March, we see that a lot of concerns were expressed but there were quite a lot of things on which most of the people who spoke more or less agreed. First, for example, there was a degree of unanimity that things were not satisfactory at present. Secondly, there were those of us who argued that what we were concerned with were clashes between the Lords and the Commons, while others argued that they were clashes between the Executive and Parliament. It was the noble Lord, Lord Butler, who pointed out that they are both the same thing in practice, and that we ought not to get too uptight about that. There was also, as there has been in this debate, a general feeling that a Government with a majority are entitled to get their business through. Lastly, while no one actually ruled out legislation, at least on the government side, there was a general feeling that if we could find a way of dealing with these matters without legislation it would be a great advantage to everyone. Of course there were things on which we disagreed, and we have encountered them again today, such as statutory instruments, Henry VIII clauses and so on.
It is roughly 44 years since I came into Parliament, and I have to say that these debates have been going on for all that time and probably will for another 44 years after I have long since disappeared. The evidence is not overwhelmingly on one side, which is why the matter needs to be looked at. There are people who argue that that is not what has actually been happening. It is argued—my noble friend Lord Norton said something like this a minute ago—that the Executive are becoming more powerful than Parliament. However, quite a lot of academic research demonstrates that Parliament has much more power over the Executive than was ever the case in the past. There is a considerable amount of academic information about things that Parliament has done to Bills brought in by Governments. I would like there to be a cool discussion of these issues in finding a better way forward.
Every now and again we hear from the noble Lord, Lord Richard, on this subject. He is quite right to raise the question of financial privilege—we have not yet had an answer on that. We need to know what goes on and whether it is properly controlled. It is not that we are worried about the House of Lords having the right to vote down secondary legislation; it is the fact that under the present system there is a complete veto. That is the problem. We need to find a way of getting over it, so of course we need to have a proper discussion. An absolute veto is not acceptable in this day and age.
I very much welcome the tone of a lot of the contributions to this debate. There are ways forward that will not necessarily require legislation, but this issue will require a certain amount of good will and co-operation on all sides of the House.
Lord Woolmer of Leeds
The noble Lord mentioned an absolute veto. Is it not the case that a statutory instrument annulled by this House as a negative instrument can be brought back immediately with a change of title, and that an affirmative resolution instrument which is rejected can be brought back with minor amendments? So it is not an absolute veto. That is what happened in the case of the Rhodesian sanctions.
Lord Wakeham
Somebody who has spent as many years in business management as I have knows that there are ways around all sorts of things. However, the fact is that a statutory instrument which is rejected by this House is dead and another way has to be found of dealing with it. In my opinion, that is a nonsense. We have to find a way of giving this House more influence while recognising that, ultimately, the House of Commons has the final say.
Baroness Taylor of Bolton (Lab)
My Lords, I join those who have congratulated my noble friend on introducing this debate. The balance of power between government and Parliament should probably be discussed by both Houses on a regular basis, including the case for Parliament having full details of all legislation that it is asked to consider.
The noble Lord, Lord Norton, mentioned that in the Commons there have been some interesting developments that are relevant to the overall balance of power, and I think that that is the case. There have not been similar changes in this House—a matter that is also of interest. It is a fact that having full details of legislation is only one aspect of the balance of power, and for good reason colleagues have concentrated on that issue in this debate.
Perhaps I should declare an interest—or maybe a confession—in that I have been both a poacher and a gamekeeper. I have been proud and fortunate to serve as Leader of the House of Commons and as Chief Whip. I have also, over many years, been a Back- Bencher, and I am now a member of the Constitution Committee under the excellent chairmanship of the noble Lord, Lord Lang. I mention that experience because I hope that it gives me a balanced approach to the different interests. We have an unusual parliamentary system and an unusual government system, because the Executive come from the legislature, as has been mentioned. That is different from what happens in most countries and it creates tension. That tension can be constructive if it is used in the right way and if people are aware of the roles that they have and the limits on those roles.
There have been many suggestions today for improvements in how we look at legislation. Incidentally, I must mention to the noble Lord, Lord Strathclyde, that pre-legislative scrutiny was a recommendation of the Modernisation Committee in 1997, so it was not all bad, as he suggests. Mention has been made of the fact that we do not use Green Papers and White Papers and use Henry VIII clauses far too often. Although I agree with the noble and learned Lord, Lord Judge, on a great deal, as a business manager, it must be a step too far to say “never” to Henry VIII clauses. We have to consider their role. However, the fact that he says “never”, does not excuse what has been happening in recent years—on that, the noble and learned Lord, Lord Judge, is absolutely right. When he said that one Bill consisted of a whole series of blank pages, it was a wake-up call for everybody to realise just how far things have gone in that direction.
I do not think that, in government, those of us who were business managers ever went so far. However, something that I was asked, time and time again, especially when I was Chief Whip, was which MP gave me the most problems: which serious rebel was the most difficult? In fact, when I was Leader of the House and when I was Chief Whip, the greatest problems came from Ministers, who were trying to do too much—trying to introduce skeleton Bills, Christmas tree Bills and new clauses late on—and expecting the Whips and everybody else to snap their fingers and get all that business through. It was difficult. They were always pushed and they were encouraged by civil servants, but some departments—they know who they are—were particularly difficult.
I recall that when we were in government, we had what was called the LEG committee—the legislative committee of cabinet. Every single piece of legislation that was to be introduced had to go through that committee. Every Minister who presented a Bill had to take it to that committee and it had to pass certain tests. For example, the Treasury had to be willing to sign it off, and it had to be acceptable on human rights and environmental grounds. One of the questions that was always asked at that committee was: what are the implications in terms of delegated legislation? We had Lords business managers on that committee and they frequently reminded us of the difficulties in getting too carried away with what could be done by secondary legislation.
I have been listening to this debate carefully. I was particularly concerned with what my noble friend Lord Campbell-Savours said about what he was told about why some amendments to the housing Bill were introduced so late; it was a deliberate tactic. I was also concerned with what my noble friend quoted from the article in the Financial Times, where a political aide said that it was “deliberate policy” to try to use statutory instruments wherever possible. That means that it is not an accident that we have seen such a mushrooming in statutory instruments. The noble Lord, Lord Strathclyde, can make his point about the numbers, but the point made by the noble Lord, Lord Norton, about the length of SIs is important, as is the fact that we are now seeing more policy issues introduced through SIs. That is really what is causing us some difficulties. This trend is dangerous, and my noble friend Lady Andrews was right to call what we have seen in recent years a “step change”.
It is not just a question of the niceties of Parliament or how this House behaves. This is very basic in terms of democratic accountability. It is also very important for the quality of legislation and the impact of the policies on people in subsequent years. If we saw Ministers future-proofing their powers, it would be very dangerous indeed.
I am afraid that the recommendations made by the noble Lord, Lord Strathclyde, are not the way forward. It is not just for this House and another place to consider how they deal with SIs; it is fundamental that the Government themselves look at how they introduce legislation and improve preparation and that Ministers take responsibility for the policies they put forward.
Lord Wallace of Tankerness (LD)
My Lords, like all the other contributors to this first-class debate, I congratulate the noble Baroness, Lady Smith of Basildon, on introducing this topic and on the constructive suggestions that she—and indeed many others—put forward. The debate will repay reading in the days and weeks ahead.
As so many contributors have indicated, a delicate balance lies at the heart of our constitution: the balance of power between the Executive and Parliament. It is important that we are always on our guard to make sure that the balance does not tip too far in one direction—in favour of the Executive and to the detriment of Parliament.
For Liberal Democrats, the distribution of political power is an issue of prime importance. The belief is in our DNA that, ultimately, sovereignty rests with the people, and that authority in a democracy derives from the people. These beliefs point to a strong democratic process with a just and representative system of government and effective parliamentary institutions, with decisions being taken at the lowest practical level possible.
A key role of Parliament in a parliamentary democracy is to hold the Government of the day to account. That applies to both Chambers. We do this by Questions, by challenging the Executive’s policies and actions and by requiring Ministers and senior officials to account publicly and in person for their decisions.
I agree with the noble Lord, Lord Norton of Louth, that there have been a number of positive developments in recent years, both here and in the House of Commons, to improve the balance between Executive and the legislature. There have been changes in the House of Commons following the recommendations of the Wright committee, the new arrangements for Select Committees and the establishment of the Backbench Business Committee. In your Lordships’ House, there has been the introduction of the ad hoc Select Committees which allow us to investigate current issues facing the country in an in-depth and timely manner, and the practice of reserving one of those committees to conduct post-legislative scrutiny, which ensures a more regularised system for evaluating how well an Act of Parliament is working. Added to that, we have topical Questions for Short Debate, for which more time has been made available and perhaps still more could be.
But there is still some distance to go on the path to reform. At the heart of the challenge before us is the capacity of Parliament effectively to scrutinise the volume of legislation that is routinely presented by the Government of the day. The noble Lord, Lord Cunningham, mentioned the paper which was circulated to a number of us by Mr Daniel Greenberg, in which he indicates that between 1960 and 1965 the average number of clauses in a new Act was 24, but between 2010 and 2015 the average number of clauses in a new Act had risen to 49. There has not been an equivalent increase in the amount of parliamentary time devoted to scrutinising them. The paper further points out that in the 1960 annual volume of Public General Acts there were 1,200 A5 pages, whereas in 2010 the same document had grown to 2,700 A4 pages. That is quite a significant increase.
The noble Baroness, Lady Smith, quoted from the recent report of the Constitution Committee, chaired by the noble Lord, Lord Lang of Monkton, which stated that,
“the nature of the instruments has also changed. Delegated powers in primary legislation have increasingly been drafted in broad and poorly-defined language that has permitted successive governments to use delegated legislation to address issues of policy and principle, rather than points of an administrative or technical nature”.
Examples have been given of Bills in the previous Session and in this Session where that has been case, and it was particularly graphically illustrated by the Housing and Planning Act, cited by both the noble Baroness, Lady Hollis, and the noble Lord, Lord Campbell-Savours.
If an increasing amount of legislation is being presented to Parliament, and more policies are being implemented by way of statutory instruments instead of primary legislation, there must be a concern as to whether Parliament has the capacity to cope and to perform its role effectively and efficiently. The result is that government can pass legislative proposals with greater ease and less scrutiny—and that problem is compounded if a Bill is inadequate. Much emphasis in the debate was placed on the importance of having impact assessments on time and on having draft regulations and codes of practice.
Another paragraph in the document from Mr Greenberg caught my eye. It is not just in secondary legislation that much detail is found. Mr Greenberg wrote:
“Another rule of law issue of concern to many is the enormous growth since around 2000 of the use of powers to make quasi-legislation in the form of guidance, codes, schemes and other instruments which have legislative effect but are not given the formality of scrutiny associated with subordinate legislation. They are not published on the National Archives legislation site, and although in principle published on the government’s central website they can be difficult or impossible to find, even if one knows of their existence”.
So there is a whole tranche of regulation or sub-regulation which Parliament barely gets an opportunity to look at.
I have mentioned before how this House has updated its procedures and practice to try to deal with the onslaught of more and more delegated legislation. It is widely agreed across your Lordships’ House that the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee provide us with an invaluable service in the work they carry out on the meaningful scrutiny of statutory instruments. This is something that the other place might wish to emulate.
The noble Lord, Lord Cunningham, was right to say that the conclusions of the Joint Committee he chaired were endorsed by the Liberal Democrats. My noble friend Lord McNally served on that committee. It 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. To roll back from that in any way would be a dilution not only of the power of your Lordships’ House but of the power of Parliament.
It is against that context that we look at the recommendations proposed by the review conducted by the noble Lord, Lord Strathclyde. It has not had a great press from the various influential committees of your Lordships’ House which have reported on it, or from the Public Administration and Constitutional Affairs Committee of the House of Commons, as has been said.
The common view was best summed up by the noble Lord, Lord Norton of Louth, who, in the Lords of the Blog on 23 March, said:
“Lord Strathclyde’s review is not some minor technical report—it is actually quite dangerous in seeking to constrain the capacity of Parliament to call government to account”.
The House of Commons committee, which has been referred to, said:
“The Government’s time would be better spent in rethinking the way it relies on secondary legislation for implementing its policy objectives and in building better relations with the other groupings in the House of Lords”.
We should not consider any actions that diminish the impact of Parliament’s scrutiny function of the Executive. Instead, both Houses of Parliament should examine better ways in which we can work together to achieve a more comprehensive, informed and effective scrutiny of the Government’s legislation and actions. We continue to reject the notion that any Government achieving a majority in the House of Commons should have an absolute power to prosecute their business without the proper burden of checks and balances. As the noble Baroness, Lady Smith of Basildon, said, the Government of the day are not always right about everything and at all times.
We should not confuse the primacy of the House of Commons with the primacy of the Executive—there is an important distinction to be made there. It is incumbent on Parliament, therefore, not just to fight against moves to weaken our ability to hold the Executive to account but to try to find new ways in which we can improve our procedures. There have been some good suggestions today. The pause button referred to by the noble Baroness, Lady Hollis, is worthy of examination.
My noble friend Lady Smith of Newham drew attention to the fact that the House of Commons has passed resolutions which the Government have done nothing about. We should perhaps examine that issue. The committees of the Scottish Parliament can be the sponsors of legislation. Mr Greenberg suggests that there should be an annual debate. Every Act when it is passed should have something attached to it indicating how much scrutiny it received. If the Government had to debate it annually, it might make Ministers think before they act.
The noble and learned Lord, Lord Judge, asked how long we can go on talking. There has been some worthwhile talking today but I take his point that it may be time for action. There have been many good ideas in the debate. I hope that the Leader of the House will respond in the constructive spirit in which noble Lords have contributed, because what is needed is a willingness to seize the initiative.
The Lord Privy Seal (Baroness Stowell of Beeston) (Con)
My Lords, I will definitely pick up from where the noble and learned Lord left off and say that this has been an excellent debate. I am very grateful to the noble Baroness, Lady Smith, for the way she introduced it and for all the contributions which have been made. It has been a constructive debate and for the most part I, too, agree with much that has been said. I hope we can find lots of common ground in order to make progress towards ensuring that this House is well equipped to do its job. I will respond to some of the important points that have been raised, but perhaps I may start by making a few points from my perspective as the person representing the Government here in this debate.
As Leader of the House I am appointed by the Prime Minister, I am a member of the Cabinet, and I am responsible for the Government’s business in the House of Lords. As has been acknowledged, my party was democratically elected and has a mandate to govern in line with the commitments set out in our manifesto. But I know that to succeed in my job, I have to listen to this House; I really understand that. Moreover, I not only have to listen; sometimes, I have to deliver difficult messages to my Cabinet colleagues. They do not always like what I have to say, but I know that it is my job and something I have to do. I am getting better at it because I think they are getting a bit more used to some of the things I have to tell them. The point I would make to noble Lords is that the Prime Minister and all Ministers in the Government understand the importance of my role because they are Members of Parliament too. They understand that for people to have confidence in the laws Parliament makes, Parliament has an important role in the legislative process.
The noble Baroness acknowledged what I said in my response to the gracious Speech the other week. We also acknowledge that Parliament improves legislation; that is part of what it does. But it is also true that from my perspective in government, when I see the picture from the other end of the telescope, things sometimes look a bit different. As my noble friend Lord Norton pointed out, since the last general election the balance of power has actually shifted more towards Parliament than has been the case for nearly 20 years, because the Government have such a small majority in the Commons and the Conservative Party in this House has no majority whatever. The noble Baroness referred to the approach of the Opposition in this House. I acknowledge a lot of what she said, but it cannot be ignored, as my noble friend Lord Strathclyde said, that in the first Session of this Parliament the Government were defeated on more than half the Divisions that took place in your Lordships’ House. That is significantly higher, I would say to the noble Lord, Lord Richard, than what was experienced when the Labour Party was in government.
We must recognise that the Government of the day are sustained through the confidence of the elected House, and although the Government bring forward their legislation, the legislative process itself is a conversation between the two Houses so when we talk about the balance of power, as has been acknowledged by noble Lords in the debate, we need to be mindful of the balance of power not just between the Government and Parliament but between the two Houses, and that the balance goes both ways. So while it is absolutely right that we in this House have the power and sometimes the responsibility to ask the other place to think again, we must acknowledge at the same time when to take no for an answer, mediated by the conventions that underpin our work. I feel strongly about that because that approach is what helps to protect our legitimacy as an unelected House. That point was very well made by my noble friend Lord Lang, and other noble Lords who have spoken in today’s debate.
The legitimacy of Parliament and of this House also relies on the Government upholding their responsibilities in ensuring that both Houses are able to scrutinise fully our legislation. I recognise that we as a Government have a responsibility to make sure that Parliament has the opportunity to carry out its proper role in holding the Government to account and in scrutinising our legislation. I appreciate what lies behind the concerns raised by noble Lords in that respect, and I will come on to some of the more specific points on secondary legislation, and so on, in a moment.
I would also say—the noble and learned Lord, Lord Wallace, touched on this as well—that as a House, we care very deeply about how we go about our work in scrutinising legislation, and we have made quite a bit of progress over recent years with some new innovations. We now have post-legislative scrutiny committees that have been set up as part of our regime of Select Committees. We ensured that there was more pre-legislative scrutiny in the previous Parliament than in the one before, and we have new things such as topical QSDs. There is more time for Members of this House to scrutinise and hold the Government to account. Yes, Governments do not always get it right. I know that this one and previous Governments, as has been acknowledged, have not always got it right. I have heard loud and clear, both today and through other debates, that there are areas where noble Lords feel strongly that we must do better.
Let me start with skeleton Bills. Sometimes material is brought forward later than is desirable, as was the case with some material emerging after the election. Yes, I want to ensure that as Parliament proceeds, it has the information it needs to do its job. Having gone through one Session, I feel that I have learned lessons that I want to ensure are properly applied by the Government. The first Session of a Parliament is always a bit different from later Sessions because straight after an election, clearly, the Government have to get on with implementing their commitments in their manifesto. Some things require them to get on sooner rather than later, because if they have commitments that they must deliver by the end of that Parliament, they are required to bring forward legislation very early on and they need to get on.
I have learned lessons and I noted very much what the noble Baroness, Lady Taylor, said about some of her experiences when she was Chief Whip and a Minister. I sit on what we now call the Public Bill legislative committee in government. I think that my reputation as a plain speaker, as far as Ministers who bring forward their Bills to that committee are concerned, is starting to get a bit more widespread than it might have been before. I can assure noble Lords that I am taking very seriously my responsibilities to ensure that legislation is brought forward in as complete a fashion as possible.
The noble Baroness, Lady Smith, made many points with which I would agree, and I share her view that this House has to have the right information to do its job properly. I do not accept that we have not welcomed challenge because, as she was good enough to acknowledge, Ministers in this House have engaged quite constructively with Members of your Lordships’ House during the passage of Bills. Yes, a couple of Bills may not have been as well developed as I would have liked, but we did get through 23 Bills in the last Session. By and large, most of them arrived here in greater shape than they might have been—or not necessarily in the shape that some described them. We might have a difference of view on that.
Some skeleton Bills arrive in that way for a purpose. The cities Bill was designed in that way so that we could allow the Government to enter into proper agreements with local authorities. Mention has been made of the buses Bill in this second Session. Again, it has been specifically designed in that way. I do not necessarily argue that all skeleton Bills are bad because that is how they have been prepared.
I move on to the content of legislation, secondary legislation, the number of statutory instruments and the use of Henry VIII powers. The number of statutory instruments was raised by many noble Lords. I cannot let go of the fact that, in the last Session, about 750 pieces of secondary legislation were laid in Parliament. This is the lowest number for more than 20 years. It compares very dramatically with first Sessions of previous Governments over recent times.
Baroness Stowell of Beeston
We can move measurements if we like and start counting pages, but it is a statement of fact. I cannot go back and count all the pages of pieces of secondary legislation from 20 years ago, but I can tell noble Lords that we certainly dramatically reduced the amount of secondary legislation in the last Session.
Baroness Hollis of Heigham
My Lords, we talk about clauses, SI numbers and pages, but what matters and what the noble Baroness has so far not addressed in her constructive response is whether they are heavy-duty SIs carrying a policy load. Nobody has any objection to a number of SIs that technically adjust things such as the timing of when things will be brought in. What matters is whether they carry policy and therefore, by virtue of being SIs, put that policy beyond proper parliamentary scrutiny.
Baroness Stowell of Beeston
We can get into a debate on the detail. I have looked at the content of secondary legislation and how the Government performed in the last Session against the Governments of which the noble Baroness was a member. If she likes, I can trade a range of different examples of where previous Governments were criticised for inappropriate use of secondary legislation, but we are trying to move forward.
On the point raised on Henry VIII powers, I was pleased that the noble Baroness, Lady Taylor, disagreed with the noble and learned Lord, Lord Judge. Like her, that is not something from which I take any pleasure. She is right to point out that it would be impossible for us to do without Henry VIII clauses completely, but that does not mean Parliament should not be very watchful of the Government’s use of such powers. Some are appropriate, in that they are used in appropriate circumstances. For instance, the noble and learned Lord referred to one in the Children and Social Work Bill, which is about to receive its Second Reading in this House. That is designed for a specific purpose. Clearly, as that piece of primary legislation goes through, we will have to debate whether that power is appropriate for what it is designed to do. We can and should have a proper debate about these things but I would not necessarily argue that all of them are open to criticism just because they exist.
As the House knows, the Government have not yet responded to my noble friend Lord Strathclyde’s review of secondary legislation. This was acknowledged by the noble Lord, Lord Butler. We are still considering that report and all the Select Committee reports alongside it. In looking at all these things, as my noble friend Lord Wakeham said—I think this is where we have real agreement in the House—we do not want this House to diminish its influence but we need to ensure that the elected House, the House of Commons, has the final say on all legislation, not just on primary legislation. This is a topic that I know we will continue to discuss and consider.
I note what my noble friend Lord Trefgarne and others said about the conventions that were so hotly disputed. The problem is that we still have among us a lack of agreement on where we are with those conventions. That does not mean that we cannot try to seek some clarity and agreement between us.
The noble Baroness, Lady Smith, made a number of constructive suggestions about steps that could be taken to address these matters. As I say, I think we all agree on the importance of what we are trying to achieve, which is for this House to continue its very important role of scrutinising and revising legislation, and holding the Government to account. I will reflect carefully on some of the noble Baroness’s specific proposals. I note that a lot of the issues she raised—such as Cabinet Office guidance, full impact assessments prior to Secondary Reading debates and draft regulations prior to Committee—are what should happen anyway. That means there is a lot for me to take away and think about. The process is there but I need to ensure that the Government understand their responsibilities in proceeding with and fulfilling that. I will reflect as well on the noble Baroness’s idea of a particular committee to look more broadly at how we prepare for legislation and our various scrutiny procedures in this House.
More than anything, I want to conclude by reinforcing to noble Lords just how much I share with them the objective of trying to make sure that this House is able to do what it exists to do. Like all noble Lords who spoke today, and many more sitting here in the Chamber, we all feel very passionately about the purpose of this House. Noble Lords have heard me say many times that I describe it in this way: this House exists to give the public confidence in the laws that ultimately Parliament makes. I want to ensure that we are always equipped to do that. I will take away the very constructive comments and contributions made today. I will carefully read Hansard again; as noble Lords know, often when one is sitting on the Front Bench it is hard to keep up with everything being said. I am very grateful to the noble Baroness for her introduction to this debate and for everything that she said today about my ministerial team and their efforts to respond constructively to the scrutiny given to the Government’s legislation. I thank all noble Lords for their contributions.
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.