Captain of the Honourable Corps of Gentlemen-at-Arms and Chief Whip (Lord Kennedy of Southwark) (Lab Co-op)
My Lords, I will make my usual statement before we start proceedings today. I will keep it short to enable the debate to start as soon as possible. I thank noble Lords again for their kind words and constructive discussions during the past week. I continue to do my best to strive to find ways to assist the House in its scrutiny, balancing some difficult and often opposing positions.
As I set out last week, following the House’s clear indication that it wants more time to consider the Bill, I will seek to adjourn the House not at 3 pm but at around 6 pm. Noble Lords will not be surprised to hear me say that, ultimately, it remains in the hands of the House, and noble Lords may seek to adjourn earlier by moving the Motion that the House be resumed. As we did last week, we will adjourn the Committee at a convenient point around 1 pm for a 40-minute break, to give those participating a chance to eat.
I hope that noble Lords will make more progress than on previous days. I trust that they will continue to debate with respect for each other’s and different views, remembering that opposing views are just as sincerely held as theirs. We do not take interventions on interventions, and all interventions are opportunities to ask a short question, not to give another speech; I have asked the Whips to intervene if that it happens.
Finally, on behalf of the whole House, I place on record our thanks to the staff of the House for their usual courtesy and professionalism and the excellent service that they provide to Members, not only today but every day. With that, I think we should move to the substance of the Bill and continue our debates.
Lord Ahmad of Wimbledon (Con)
My Lords, I thank the Chief Whip for the time he gave me yesterday. I would like to make three very brief points. There has been much speculation and discussion outside your Lordships’ Chamber on the procedure, principles and workings of this House.
On procedure, this week there has regrettably been much discussion about the use of the Parliament Act when it comes to the workings of the Bill. I ask the Chief Whip, who I know holds the House in great esteem and fights its cause, to clarify the fact that, in the case of the Private Member’s Bill before us, it would be unprecedented for the Parliament Act to be used. As all noble Lords know, the last time it was utilised was in 2004, with what became the Hunting Act, which was a government Bill. So we would be setting a very different precedent if that was to happen.
My second point is on procedure. If the Bill did not pass and the Parliament Act was invoked, it would not be for the Bill’s supporters to make that call. My understanding is that that would be a matter for Mr Speaker, after careful consideration. Equally, my reading of the two Acts is that it is very clear that the House of Lords would still have a role. Let us not forget that, if this was presented again in the next Session, there would still be the small issue of the ballot for Private Members’ Bills in the other place. I again ask the Chief Whip to clarify the issues of procedure to allow for effective debate in your Lordships’ House.
My third point is about the House of Lords itself: who and what we are. As many noble Lords will know, I was on the receiving end for a very long time, with 12 years in Government across communities, the Home Office, transport and the Foreign Office, dealing with the SAMLA legislation and discussions around the EU and Brexit. Everything was done in a reasoned way, as the Chief Whip has said, and we listened. I say that to the proposer of this Bill, the noble and learned Lord, whom I respect greatly. As he and I joked recently, I have certainly played my part in listening during Committee—I have been here for a large part of it—but I am yet to intervene and I warned the noble and learned Lord that that does not mean that I will not.
That said, I recall, I hope correctly, something that the noble Lord, Lord Carlile, said about the value of your Lordships’ House. I pay tribute to the noble Baronesses, Lady Finlay and Lady Grey-Thompson, among others. Having listened to the debates, most, if not many, of the amendments being proposed are to ensure that, if this legislation became law—I respect that, as the Minister and my noble friends on the Front Bench have said repeatedly, this is a matter on which both His Majesty’s Government and His Majesty’s Official Opposition are neutral—the duty of care that the Government have for the protection and security of our citizens would be paramount. Therefore, I invoke the good offices of the Chief Whip and of the Lord Privy Seal and urge them to continue to protect the traditions, conventions and procedures of your Lordships’ House in any discussions that take place.
Lord Pannick (CB)
I have two questions. Will the Chief Whip confirm that whether the Parliament Act is invoked is entirely a matter for the House of Commons? Does he agree that the reason that the Parliament Act is being discussed at the moment is because this is day 8 of Committee and we are still on Clause 1?
Lord Deben (Con)
I was not going to intervene, but the reason that we are here is, to be frank, that we have received no answers on any of the points raised by the proposers of the Bill. We have no idea what amendments might be laid. If the proposers of the Bill were to show themselves much more willing to listen to the problems we have, we might well be able to move faster. But I am a bit tired of the general campaign that suggests that this House, in doing its job, is somehow or other behaving badly.
Lord Blunkett (Lab)
Before my noble friend responds, I just want to say that when I have not been able to sit in the House in Committee, I have followed the debate. Does my noble friend agree that it would be really helpful if people debated the Bill that is before us and not one that is being made up from outside this House?
Lord Kennedy of Southwark (Lab Co-op)
First, I love the House very much and I have been here for 16 years. I have been absolutely privileged to be here every day, both in opposition and in government. We all come here every day to work with the best intentions and in the best interests of the House. The House, over many years, has always assisted the other place in improving legislation, scrutinising it and making better Bills. We have all—in opposition or in government—done that. We should get that on the record first of all.
I thank the noble Lord for his question, and other noble Lords, particularly for coming to see me yesterday. I have had a chance to go away and look at some of this stuff, and I have a statement to read out to colleagues. If they let me get to the end of it, I hope that I may have found a way to assist colleagues.
I am not an expert on the Parliament Act 1949. Noble Lords will probably not be surprised if I say that it is complicated. I cannot and will not give a view on whether the Act can be applied to this Bill or any other Bill. If noble Lords are interested in the detail, I can refer them to paragraphs 30.49 to 30.56 of Erskine May, which sets a very helpful background, as does the note from the House of Commons Library published in February 2016.
Ultimately, decisions on the application of the Act are for the House of Commons. Erskine May makes it clear in paragraph 30.55 that any final decision must be endorsed by Mr Speaker. I do not want to misadvise the House on a complex procedure; to avoid that and to assist all noble Lords, my office has spoken to the Clerk Assistant, soon to be our new Clerk of the Parliaments, and I am pleased to announce to the House that the clerks will arrange a factual briefing on the details of the Parliament Act and its general application. The briefing will not be a discussion about this Bill or act as a forum to ask “what if”; it will tell us how the Parliament Act works and how it can be applied to legislation.
However, I can confirm for the record that the Parliament Act 1911, as amended by the Parliament Act 1949, applies to all public Bills—other than money Bills and Bills extending the maximum duration of a Parliament—so it can be applied to Private Members’ Bills. The Act provides that any Bill introduced originally in the House of Commons and passed by the Commons in two successive Sessions with at least one year between the first Commons Second Reading and the Commons Third Reading in the second Session can be presented for Royal Assent to the Commons. Many of the conditions underlying this are open for interpretation in what constitutes rejection by the House of Lords.
The Act has not been applied to a Private Member’s Bill to date; it has, however, been used for several Acts of Parliament. The 1911 Act was used for the Government of Ireland Act 1914, the Welsh Church Act 1914 and, interestingly, the Parliament Act 1949. Since 1949, it has been used for the War Crimes Act 1991, the European Parliamentary Elections Act 1999, the Sexual Offences (Amendment) Act 2000 and the Hunting Act 2004.
That is where we are. I will arrange for a proper factual brief so noble Lords will understand how the Act operates, and I will probably attend the briefing myself. To be clear, however, it is a matter for the other place and for Mr Speaker. It has never been used for a Private Member’s Bill to date.
Lord Moore of Etchingham (Non-Afl)
My Lords, I am very grateful to the Chief Whip for his, as always, very kind and helpful explanations. I have a further point to raise, because I think it affects the proceedings of your Lordships’ House as we go on from today.
Of course, I would defend to the death the right of the noble and learned Lord, Lord Falconer, to appear on the “Today” programme. I think what he said there, however, made it very difficult for the proceedings that are about to ensue, because he threatened us with the Parliament Act—though I do not think that is in his power—and said that what was going on in all these proceedings was just a filibuster. Not only is that quite untrue, as noble Lords will have witnessed through these many hours of detailed debate, which keep very carefully to specific points, but it seems to me that what the noble and learned Lord said on the “Today” programme prejudices what we are about to do in the next six or seven days. If he is saying that it is all a charade, what are his answers going to be in the coming debates? He has repeatedly given very helpful and full answers as we have had these debates, and he has never mentioned there is any problem here. He said at Second Reading that this House will do what we do best, which is to scrutinise. That is what we are doing, yet he said that it is all nonsense. What are we to make of the answers which he will now give over the intervening days to the many amendments that are put?
Lord McLoughlin (Con)
My Lords, the Government Chief Whip in his opening statement said that he is not an expert on the Parliament Act; I think he is soon going to become one. Perhaps I may ask him a question to ensure that the briefing covers it, if it does not already. In the event that this Bill does not make progress in this House and therefore is reintroduced to the Commons next year, for the Parliament Act to be used, would it have to be introduced by a private Member or could the Government introduce it, allowing the Parliament Act then to take effect, without it being as a result of the Private Members’ ballot in the House of Commons?
Baroness Fox of Buckley (Non-Afl)
My Lords, very briefly, I would like to put on record my thanks to the Chief Whip for being so helpful to all sides in this whole procedure. Following on from the point from the noble Lord, Lord Moore, in the various public events that I have done in the last week, I have been told by members of the public, “Oh, we see that the Parliament Act is going to be invoked for the Bill, so what’s the point?”. Some of them have been supporters of the Bill, while some have been worried about it, but everybody seems to think that that is happening. It has been done by media briefings, and it is quite demoralising to be in a situation where you are told that you are, in effect, wasting your time.
In answer to the noble Lord, Lord Blunkett, in preparing for today and worrying about getting the wording right on the amendments I want to speak on, I have read this Bill a number of times—which is an understatement—and try to take seriously the role that we are given in terms of scrutiny. Where I have not known anything about a matter, I have just not said anything; I have, as has been suggested, listened. However, this is not about an imagined Bill; it is about the Bill we have before us and gaps in it that some of us are worried about: what is not said and what will happen if those gaps are not filled.
It is very important, whatever side we are on, to treat one another as though we are acting in good faith, because we are. What is discrediting to the House is a media briefing suggesting that there is some cynical plot of outside forces and that, somehow, we are all influenced by hidden religious views—I think that was one phrase used. This Bill requires us to be deeply moral and ethical, whatever side we are on, because we are talking about life and death issues, a change in the constitution of the NHS and so on. However, we have to assume that we are acting in good faith, because we are acting in good faith. It is nerve-wracking enough taking on an issue like this without being told by the media, as I was last night on “Newsnight” in the gap, “Oh well, you lot are just being manipulated by forces”.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, can I just finish? I think this is supposed to be questions to me, not debating the Bill. If there are any questions, I will do my best to answer them.
The Lord Bishop of Southwark
My Lords, I too wish to speak in good faith. That is what all our Committee consideration has been about, in almost every speech I have heard and listened to—and I have made an effort to attend a good number of sittings. I am very grateful to the Government Chief Whip for what he has said. I am also very grateful to the noble and learned Lord, Lord Falconer, for saying on the “Today” programme that he now anticipates that the Bill will fall. So my question is: if and when it does, please will the need for a royal commission on dying well be factored into consideration?
Baroness Jay of Paddington (Lab)
My Lords, I think this is relevant to the points that have been made. If we did consider this Bill again under the Parliament Act, the amendments that this House had passed in this Session would have a far greater chance of surviving than those debated in subsequent proceedings. Therefore, it is important that those who wish to amend the Bill do so now—and, I would suggest, as speedily as possible.
Lord Carlile of Berriew (CB)
My Lords, will the Chief Whip protect the House from what I see as double standards? Yesterday we received the in terrorem declaration from the noble and learned Lord the sponsor that he would do something that he has no power to do: invoke the Parliament Act. At the same time, in credit to the noble and learned Lord, he wrote a letter, running into four pages, in which, after seven weeks in Committee, he accepted a large number of the propositions made in your Lordships’ House. Surely that demonstrates that Committee in this House matters, is useful and is not evidence for the use of the Parliament Act.
Baroness Falkner of Margravine (CB)
My Lords, I have a very brief question about the Chief Whip’s exhortation to us this morning that, as usual, we should remain brief. In the noble and learned Lord’s interview on the “Today” programme yesterday, he repeatedly said that a few Members of this House were filibustering and delaying the passage of the Bill. Do noble Lords accept that, while many people across this House would wish to intervene on every amendment, we hold back to allow those who are more expert than we are to articulate our concerns in order not to delay the passage of the Bill? It is our self-restraint that has made us arrive at where we are today.
Baroness Butler-Sloss (CB)
Can I just add this? I have sat through every day in Committee. Last Friday, I did not say a single word.
Lord Blencathra (Con)
My Lords, following the point made by the noble Lord, Lord Carlile, we seem to be in the extraordinary position where the noble and learned Lord, Lord Falconer, has now brought forward a series of large new clauses and amendments. On the one hand, he has admitted that the Bill is fundamentally flawed, yet, on the other hand, he is threatening to drive it through via the Parliament Act. Doing so would mean driving through a Bill that he now admits is fundamentally flawed and needs amendments. Am I seeing something illogical there?
Baroness Young of Old Scone (Lab)
My Lords, I will make one point on behalf of silent Back-Benchers across the House. If we are not actively speaking to amendments, the only opportunity to express a view about the elements of the Bill will be when we get to vote. On the current progress, we are never going to get to that point. Personally, I feel very disenfranchised by that. I wonder whether there is a way we can get to a point where the House as a whole—every individual one of us—can express a view, in order for us not to be disenfranchised.
Baroness Berridge (Con)
I am sad to add to the list of requests to the Chief Whip. I was saddened to hear the allegation on the “Today” programme that those opposing the Bill are just a random group of religiously motivated people. It is not how I have ever been treated as a Christian in this House.
That came on the back of questioning, covered by parliamentary privilege, of the representative of the British Association of Social Workers. The representative was chosen by the professional body to come to us. He faced questioning from one of the members of our Select Committee, who basically said to him— I summarise—“Do you have a right to put your views on others, as a vicar?” In any other forum, that would have been a breach of the Equality Act, had there not been parliamentary privilege. Can the Chief Whip look at the Code of Conduct to see whether these lazy allegations—that, somehow, religiously motivated people might also just be ignorant—should not be made on the “Today” programme or in the questioning of witnesses in a Select Committee of your Lordships’ House?
Baroness Coffey (Con)
My Lords, I suggest to the Chief Whip that, in addition to the clerks’ seminar, noble Lords might want to speak to the noble Lord, Lord Spellar. His Private Member’s Bill did not proceed in this House, so he used the Parliament Act, or started the process that would trigger the Parliament Act if necessary. Therefore, I think he can give everybody some practical experience, alongside the theoretical insight from our good clerks.
Lord Kennedy of Southwark (Lab Co-op)
First, if I cannot cover all the points, my door is open at all times. Please come and see me. I genuinely want to be helpful to all Members of the House.
The noble Baroness, Lady Coffey, gave us some very good advice. I first met my noble friend Lord Spellar when I was 16; he has been a friend of mine since then. He is a thoroughly good noble Lord, and I always listen to him very carefully.
I will say a few things in response to Members from across the House. First, a royal commission is not for me to discuss; that would be a matter for the Government to look at.
Protecting the House’s procedures is obviously one of my roles, and I try to do that as best as I can. I try to defend the House and enable all Members to have their say. We are, of course, self-regulating, and we all treasure our self-regulating status. But to be self-regulating, we have to show some self-regulation. We have to be mindful of that, because the alternative is that we end up with House of Commons-type procedures, which no one would want to see. When we are speaking, we have to treasure our self-regulating status and ensure that it carries on.
The Government have no intention of bringing back this Private Member’s Bill. It will remain a PMB, and the Government have no intention of bringing it back in the next Session. I am having enough problems getting the Government’s programme through at the moment, let alone trying to deal with this Bill, so I promise noble Lords that it will not come back as a government Bill. This is why I do not want to get into a lot of what ifs. If the Bill falls, it may come back through the House of Commons; it may get through and then the Parliament Act may be applied—but that is a matter for the other House. It is not for me or for any other Member of this House to determine what the other House or Mr Speaker do. That will be a matter for them—if it happens at all. That is all I can say on that.
I did not listen to my noble and learned friend on the “Today” programme. I am sorry; I usually listen to it, but I missed that one. I must listen to it on catch-up to hear what was said, because it has clearly had a lot of bearing on what Members have said today. A lot of things get talked about in the media; there is a lot of speculation and pages have been written in newspapers about this. At the end of the day, this House will decide what it does with this Bill and no one else will decide that—it is up to this House. I think we should make more progress.
As I said earlier, if the Parliament Act were to be applied, many conditions would be applied to make that happen. I suspect that they would look at how the House of Lords has dealt with the Bill—but that is a matter for the other place, not for any Member here. I think I have covered most issues, but please come and see me if not.
Baroness Berger (Lab)
I am listening very carefully. I am asking for a point of clarification from my noble friend, whom I have been listening to very carefully; obviously, we listen to his advice and guidance. My noble friend has said twice now that we should seek to make more progress. We have had other Members in this conversation reflect on the fact that we are only at Clause 1. Behind that are the 295 amendments that we have considered over the past seven Fridays, which equates to around seven and half minutes per amendment. I seek my noble friend’s guidance: how many minutes should we seek to cover for each amendment, on the basis that he would like us to make more progress?
Lord Kennedy of Southwark (Lab Co-op)
I cannot do that. What I can say to my noble friend is that, in my 16 years in the House, I have found that some groups take longer than others and some get dealt with very quickly. I think we all need to use our best endeavours to make some more progress. We cannot set minutes per group; it does not work like that. Sometimes, I have sat here, and a group has been dealt with very quickly in two or three minutes; other times, I have sat here for three or four hours. I just think that we should all try to make more progress. If we have sat for four, five, six or seven hours and done only two or three groups, that is, in my opinion, quite slow, and we should look to do more than that. I hope that that helps my noble friend.
Baroness O’Loan (CB)
My Lords, first, some of those groups have had nearly 100 amendments in them, which is quite a lot. Secondly, in this week when we remember the Holocaust, your Lordships’ House—which, in making laws for the whole country, is required to respect people’s rights, including their right to freedom of religion—is compelling us to sit until 6 pm.
Our Jewish Members are unable to do so, and I have seen them very quietly leaving Friday after Friday. Members of the Muslim community are also adversely affected by the sitting arrangements, and those who have a disability and who cannot attend because of the current arrangements are also prejudiced against. We do not do ourselves a service when we discriminate on grounds of religion and disability.
Lord Kennedy of Southwark (Lab Co-op)
As the noble Baroness knows, this issue has been raised over a number of weeks now, and I have met several noble Lords to discuss it. As I have said before, it is up to any noble Lord to move at any time that the House do now resume if they wish to do so. I said that I would not come back until 6 pm, but the point is that we set a target every day for Members to get to. If we get to the target, we can go home. If we get to it much earlier, we can leave earlier. The 6 pm time is a maximum—we do not have to go until 6 pm. We could get to our target and go home much earlier if we wanted to. In my discussions with colleagues, I have tried to put in place procedures to help people who need to leave for reasons such as disability or religion.
Baroness Blackstone (Lab)
My Lords, my noble friend the Chief Whip has rightly pointed to the lack of progress we are making on this Bill. Part of the problem is not how much time we spend on each amendment, but the number of amendments that have been put down, which is unprecedented. I hope that those who are opposed to the Bill will accept that many of us who are in favour of it understand completely the good faith of those who are querying some aspects of it. What we are worried about is that we are not going to be able properly to consider the Bill because of the time being taken on many amendments—quite often rather absurd ones, and some of which completely repeat what has already been brought forward.
Lastly, in defence of my noble and learned friend the Bill’s sponsor, he has responded in these debates with courtesy and consideration and has taken seriously what has been said. It is very unfair to criticise him. He has also responded in a letter, as has already been stated, setting out which amendments he intends to take further and come up with a response to on Report.
Lord Harper (Con)
My Lords, responding directly to that point, it is indeed true that the noble and learned Lord, Lord Falconer, wrote to some members yesterday. Sadly, I did not receive his letter directly from him, but it was forwarded to me. Part of the problem here, directly relating to the noble Baroness’s question, is that the Committees of this House reported some months ago—the Delegated Powers Committee, for example, reported in September. If this was a Government Bill, the Minister would have been expected to set out a thorough, detailed response to all these points before we started Committee stage. We received a letter only yesterday from the noble and learned Lord, setting out his points, and in most cases, he said that the amendments would follow later. Had that happened earlier, many amendments would not have needed tabling. If the noble Baroness is looking for the reason for the delay, it is not just on one side of the House.
Lord Kennedy of Southwark (Lab Co-op)
Briefly—we have now been discussing this for 30 minutes, so maybe we can get on to the Bill shortly—this is not a Government Bill and it is not going to become one. My noble and learned friend always deals courteously with the House and has great stamina, staying here to deal with all these matters. There are an unprecedented number of amendments before the Committee, but if we all work together, we can make more progress on the Bill, and that is what we should be seeking to do. All the amendments have been put down in good faith, and we should accept that, deal seriously with the issues and work on that basis.
I do not believe that anyone is acting in bad faith here, and I would never suggest that. However, we need to work together to make more progress. We have had quite a number of days in Committee now, and not much progress has been made. If this were a Government Bill, I would be very agitated that we are making so little progress. However, I accept that it is not a Government Bill, and it will not become one. However, having now had nearly 32 minutes on questions, we need to move on to the substance and try to make more progress.