Strathclyde Review

Baroness Smith of Basildon Excerpts

Wednesday 13th January 2016 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I have greatly enjoyed listening to the noble Lord, Lord Strathclyde. At the outset, I thank him for his service to your Lordships House’ through this report. For years your Lordships have, without any recognition, fanfare or glare of publicity, dutifully and with great expertise considered and advised Governments on statutory instruments—or SIs as we affectionately call them. Rarely if ever has there been any interest outside Parliament. Now, with the Government having been asked to reconsider just one such SI, their massive over-reaction means that suddenly SIs are the hot and exciting political issue. In the language of social media, SIs are trending in UK politics. Part baffling and technical, part exotic with lots of promise, they have, some may say, even added a frisson of excitement to parliamentary proceedings. For that I thank the noble Lord.

More seriously, I also thank him for his report, and for the extraordinary speed with which it has been produced and the vigour with which he has sought to defend the Government’s exceptionally weak rationale for undertaking it. Like him, I look forward to this debate and welcome that there is such interest across the House from those speaking today. I am also pleased that we have two maiden speeches, from the noble Baroness, Lady Bowles and my noble friend Lord Darling, whom it is a great pleasure to welcome.

The noble Lord, Lord Strathclyde, is a jovial man of great integrity. He was a popular and effective fellow leader during the last Labour Government. Before he spoke today, I must admit that I was starting to worry that his memory was failing him. When I read his report, I thought that he had forgotten his speech, the date of which our memories may differ over—I think it was in 1999 but he says it was in 2000—in which he declared that the convention was dead. He disabused me of this when he spoke. So what has changed, now that he now sits on the government side of the Chamber? As I have said before, I think that there are two versions of the noble Lord, Lord Strathclyde: one for opposition, and now we have a shiny new one in government.

Across this House we are proud of our well-earned reputation for effective legislative scrutiny. It is what we do, and we do it well. As part of that, SIs are normally examined in Committee by Peers who have knowledge of or expertise in the issues. Any member of your Lordships’ House is entitled to ask questions or express an opinion in an SI committee. Very occasionally, there is a vote. Exceptionally this House may reject an SI. It last did so in 2012, on legal aid, and prior to that in 2007, under the noble Lord’s leadership. In his report the noble Lord recommended that the Lords’ power be limited to asking the other place to think again only. But SIs are sent to your Lordships’ House from the Government, not from the Commons, and it is perfectly proper for us to consider an SI first. Perhaps more importantly—and it is probably easier for me to admit this as a former Member of the other place—your Lordships’ House’s processes are more robust.

In the other place the Government ensure they have a majority on any SI committee and MPs are chosen by Whips. Other former MPs may recognise that the two most common questions asked by MPs selected to serve on an SI committee are, first, “Why me?” and secondly, “How long will it last?”. It is a rare Minister who welcomes Back-Bench interventions.

Of course, we should examine our procedures to see whether they remain effective, appropriate and relevant, but that should be in the interests of good governance and with respect to the role of your Lordships’ House, not for the advantage of any Government. If we are seeking to change how we scrutinise legislation, even in the narrow way outlined in the report by the noble Lord, Lord Strathclyde, we surely have to consider not just our own procedures but whether any change here should be undertaken alongside the creation of a more effective process in the other place.

We know that this report has been produced only because of our decisions to support two Motions on tax credits, one from the noble Baroness, Lady Meacher, and the other from my noble friend Lady Hollis. The result was that the Chancellor took that opportunity substantially to change his position. Indeed, perhaps Mr Osborne learnt a valuable lesson—that this House can be a Minister’s friend. As the noble Lord, Lord Forsyth, who will forgive me for quoting him, so perceptively pointed out recently in a Question to the Leader of the House,

“had this House passed the secondary legislation on tax credits, it would have had the immediate force of law and prevented the Chancellor of the Exchequer abandoning his proposals in his Autumn Statement”.—[Official Report, 3/12/15; col. 1199.]

He is quite right. We provided a breathing space for the Government to reconsider.

There was also the fatal Motion in the name of the noble Baroness, Lady Manzoor, which was rejected. The noble Baroness and I sought the same end, but we on these Benches chose to use the procedures of this House in a way that was both principled and sustainable. Even that was too much for this Government. Before any Motion had even been tabled, we had threats that the Government would pack the Lords with 150 new Conservative Peers or, more bizarrely, that this House would be suspended.

Challenge and scrutiny are not new. They were not invented by this Opposition. Indeed, unless the noble Lord’s is memory is failing, he will recall his time on this side of the House. He alluded to it in his comments today. As Opposition leader and Chief Whip, he could boast well over 500 government defeats, including 145 during the 2005-10 Labour Government and 245 during the 2001-05 Labour Government, which had an elected majority of 167. Those many defeats included a government Bill at Second Reading, two fatal SIs and a number of key national security measures that involved ping-pong late into the night. Those were hugely significant defeats for the Labour Government, so we understand that challenge and scrutiny are never easy for any Government or any Minister; but any changes must be in the public interest, provide for better legislation and be agreed by this House. They cannot be forced on Parliament by an Executive who fail to understand the role of and reason for effective challenge. As the Hansard Society points out in its excellent report, this is no way to undertake reform. An independent inquiry into the legislative process is required.

Every year around 1,000 SIs are debated here following consideration by our highly regarded Secondary Legislation Scrutiny Committee. The committee flags up the issues it knows we will take an interest in or where the Government have fallen short, and we welcome those reports as essential to proper scrutiny. So, given that hundreds of SIs have already gone through your Lordships’ House, is it really the case that the Government are failing to get their business through? Of course not. The reality is that we seldom use our powers to their limits, but that does not mean they should not exist. It means that this House is respectful of when it is appropriate to use them. That was recognised in the Cunningham report of 2006, and I look forward to the contribution from my noble friend Lord Cunningham later today.

The Government’s case for weakening Lords’ scrutiny of secondary legislation is feeble. It is an unnecessary solution to a fictitious problem. We have to ask: is the overreaction to the tax credits vote symptomatic of the Government’s attitude to scrutiny and challenge? We should not see this as a stand-alone report; rather, it should be seen alongside other legislation and proposals—for example, the lobbying Bill in the previous Parliament that restricted the ability of charities and other groups to campaign for their causes; new limits on freedom of information; and the Trade Union Bill, debated this week, which will strip the Labour Party of its funding, quite contrary to the balanced proposals from the Committee on Standards in Public Life. We have seen reports of Ministers being told to make increased use of statutory instruments to drive through legislation without proper scrutiny; and now we have the proposal to remove this House’s power to veto the same secondary legislation that the Government favour. It is hard not to see this as an authoritarian Executive waging war on the institutions that hold them to account. The Government are seeking to stifle debate, shut down opposition and block proper scrutiny. They are a Government who fear opposition and loathe challenge.

The noble Lord’s report is entitled Secondary Legislation and the Primacy of the House of Commons. This is not about the primacy of the House of Commons over your Lordships’ House; it is about the Executive seeking to brush this House aside. The noble Lord asks for responsible opposition. We provide that. What we seek is responsible government.