The Lord Privy Seal
That the debate on the Motion in the name of Lord Liddle set down for today shall be limited to 3 hours and that in the name of Baroness Pitkeathley to 2 hours.
Baroness Smith of Basildon (Lab)
My Lords, I apologise for detaining the House as we have some important debates but I wish to raise an issue that has come to my attention this morning and which I think should be brought to the attention of this House.
Noble Lords will recall that, when the noble Baroness the Leader of the House made her Statement on the Government’s intentions regarding the Strathclyde report, it was warmly welcomed by this House; we were grateful for her comments and tone and the way that she has handled this issue. My understanding from that Statement and the debate was that we should abide by all conventions of this House and recognise our role as a second Chamber.
However, this morning—literally five minutes before I came to the Chamber—I found on my desk a report from David Lidington, the Leader of the House of Commons, on Strathclyde. The foreword of that report says:
“Whilst recognising the valuable role of the House of Lords in scrutinising SIs, the Government remains concerned that there is no mechanism for the elected chamber to overturn a decision by the unelected chamber on SIs. We do not believe that it is something that can remain unchanged if the House of Lords seeks to vote against SIs approved by the House of Commons when there is no mechanism for the will of the elected House to prevail. We must, therefore, keep the situation under review and remain prepared to act if the primacy of the Commons is further threatened”.
This is, again, a basic misunderstanding of how statutory instruments operate. This has never been an issue about the primacy of the House of Commons, but the primacy of the Government regarding secondary legislation. SIs come not from the House of Commons to this House, but from the Government to both Houses. They do not have to be considered by the House of Commons first—there is no mechanism to ensure they are considered first by that House. The conventions of this House are clear that, in exceptional circumstances—which I think has been five times since the Second World War—this House may reject a secondary instrument.
I appreciate that there is some difference between the Government’s understanding of SIs and ours, but I did really believe that the Government understood the conventions of this House as enshrined and accepted in the report of my noble friend Lord Cunningham, which was accepted by both Houses unanimously. When the noble Baroness the Leader reported to this House, we welcomed the content and her tone. She said—in an entirely reasonable comment—that,
“The Government are therefore reliant on the discipline and self-regulation that this House imposes upon itself. Should that break down, we would have to reflect on this decision”.—[Official Report, 17/11/16; col. 1539.]
I think that is entirely reasonable. Should the conventions break down, it is entirely reasonable that the Government should look at those conventions and perhaps revert to the Strathclyde review. However, that is a long way from what David Lidington says in his report. I have two questions for the noble Baroness. Do the Government still accept the Cunningham report and the conventions of this House as being the guidance underpinning our work, and to which we should adhere as a self-regulating House? The noble Baroness said in her Statement that, having considered the matter carefully, legislation would not be introduced. As I say, I have not had time to read the report published today in its entirety as I received it literally only five minutes before today’s proceedings in the House commenced. However, it says:
“We must … keep the situation under review and remain prepared to act if the primacy of the Commons is further threatened”.
David Lidington refers to that as being just the Lords seeking to vote against an SI. Does that mean that if somebody tables a fatal Motion, the Government will review the Strathclyde report and will be prepared to act? Or does it mean that if this House ever votes against an SI, legislation will be brought forward under the terms of the Strathclyde report?
I have enormous respect for the tone of the noble Baroness’s Statement and its understanding of this House. My criticism is directed not at all at her or at the Statement; it is directed entirely at what the Government now appear to be saying in David Lidington’s report. I would be very grateful to her if she could answer my questions but the Government need to reflect further on the Lidington report, and whether it should be withdrawn in the light of my comments today.
The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)
My Lords, I thank the noble Baroness for her comments. I am sorry that she takes the view that she does. All I can say is that the Government of course recognise the conventions of this House. I reiterate what I said last week:
“We recognise the valuable role of the House of Lords in scrutinising SIs, but there is no mechanism for the will of the elected House to prevail when they are considered, as is the case for primary legislation”—
as the noble Baroness said, and I said—
“The Government are therefore reliant on the discipline and self-regulation that this House imposes upon itself … This House has an important role to play in scrutinising and revising legislation, and the Government recognise this”.—[Official Report, 17/11/16; col. 1539.]
Because of the constructive way this House works, we do not believe that we need to introduce primary legislation at this time. What I said last week remains the position of the Government. The tone I used and the constructive debate that we had is exactly what we need to see in this House. I reassure the noble Baroness that my Statement last week stands, as do the thought and intention behind it.