Strathclyde Review

Baroness Thomas of Winchester Excerpts

Wednesday 13th January 2016 Lords Chamber

[Baroness Thomas of Winchester (LD)]

My Lords, ever since I joined my party’s Whips’ Office in 1977, the threat by all Governments of curbing the Lords’ power if the Opposition tried to vote down statutory instruments has been part of folklore. The threat was enough because all Governments eventually turn into the Opposition and then take a different view. It is ironic, as other people have said, that it should be a Conservative Government who are now proposing to take action, given that Conservative Oppositions have used the power far more than Labour have. As my old friend, the noble Lord, Lord Strathclyde, said in his Politeia lecture in 1999:

“Governments—all governments—are increasingly, and dangerously, insouciant about powers taken under secondary legislation … those powers are often so far-reaching that they must … undergo improved Parliamentary scrutiny. Parliament must, in turn, be ready to reject bad regulations. The new House of Lords will certainly assert that right”.

So is this Government in danger, perhaps, of becoming “insouciant” about powers taken under secondary legislation? If so, parliamentary scrutiny should be improved—as the noble Lord, Lord Strathclyde, promised —not curtailed.

I am in favour of improved scrutiny and have put forward my own proposal, also mentioned by my noble and learned friend Lord Wallace of Tankerness; briefly, it is that the substance of controversial SIs might be debated on a Motion which was amendable and on which Peers would be able to vote, while the instrument itself was parked and unaffected at that stage by votes. That two-stage procedure might enable the Government to give certain assurances, or even to withdraw and re-lay the instrument with some amendments of their own. In putting forward such a proposal, I am keen to show that I am not against a change in procedure for controversial SIs, but I am totally against legislating in this area for any diminution of this House’s power over secondary legislation. Without the ultimate threat of a veto, why would Governments with a majority in the House of Commons bother to be careful how they used their increased power? What nobody has referred to so far are the times when Governments have withdrawn an SI when the hostile Motion has been tabled. I know that from personal experience, but it will not show up in any records.

Option 3 of the review says that the Commons should have the last word. That is fine in theory but, as others have said, will that last word be a proper debate? I am full of admiration for Commons debates, but often one searches in vain for a Commons debate on an SI, only to find that there has not been one and that the SI was nodded through.

To take this whole matter forward, could we not ask our Procedure Committee to work up some of the various proposals, particularly those put in this debate, and even to conduct pilot schemes?

I end with a rhetorical question asked by the late great Lord Simon of Glaisdale, who was an expert in this field: “Do we want executive Government or parliamentary Government?”. That is still a question that we need to pose today.

House of Lords: Procedures and Practices

Baroness Thomas of Winchester Excerpts

Thursday 4th December 2014 Lords Chamber

[Baroness Thomas of Winchester (LD)]

And now for something completely different. I am very pleased to have the opportunity of this debate to fly a kite which I have flown at least three times before. It is my idea for debating statutory instruments. I thank the noble Lord, Lord Foulkes, for this chance. I have not flown the kite so far this year, so that is why it is going to have another outing.

My starting point is that affirmative statutory instruments, which are powers devolved by Parliament to Ministers, say that they are in draft, but that only means that they have not yet been through both Houses to be approved, so “draft” does not mean that they can be amended. One of the first things you learn about SIs is that they cannot be amended by either House, only agreed to or thrown out. We in this House are very loath to throw them out because our mindset is to try to seek consensus to make the law better, mostly where it resides in a Bill. However, sometimes an affirmative SI contains a good deal of meat which could not be foreseen in the parent Act, or circumstances have changed between the passing of an Act and the making of an instrument—years often pass—so, on occasion, a draft affirmative SI is laid before Parliament which is extremely controversial. Various Peers may table regret or even deplore Motions, with reasons, but that does not alter the fact that even if these Motions are passed, the SI is still passed with a mild slap on the wrist from the House.

How much better it would be to have a meaningful debate about the substance of the instrument in the Chamber, without the instrument itself being taken at that point. I envisage a carefully worded resolution to which amendments could be proposed and voted upon, but with their effect being advisory only. This would almost be another stage in the consultation process, which all Governments now take much more seriously than they did. The House would be the consultee, knowing that the arguments could be taken on board by the Government. The Government would know what the arguments against the instrument were. At that point, they might just decide to tough it out by taking the original instrument through the House, marshalling their arguments accordingly. Or they could withdraw the original instrument, even if it had been through the House of Commons, and retable another one to reflect points made in the earlier debate.

I know it will be said that I am being unrealistic and that no Government would agree to such a procedure willingly. However, if in the future more SIs are voted down, as quite a few Peers advocate, then any Government might feel that my halfway house approach is preferable. I do not think that this procedure would be used more than once or twice a Session, if that. The real question is how long Parliament will accept the “take it or leave it” procedure we have now.

Procedure of the House

Baroness Thomas of Winchester Excerpts

Wednesday 24th April 2013 Lords Chamber

[Lord Sutherland of Houndwood]

My Lords, I have three points: first, if there is to be a committee it must be elected. There are no doubts about that. Secondly, a major gap has been identified in this debate, and that is the capacity of this House to identify major topics of current concern and debate them urgently. There has to be a way of doing that, whatever comes out of this debate, and I put it to the Leader of the House that he must look at that. Thirdly, we should not vote to have another committee on the basis that this is an experiment. Any committee that I have ever seen that people have tried to kill has been cut in half and then there are two new ones.

[Baroness Thomas of Winchester]

In general, I am in favour of progress, modernisation and change, but I am not in favour of a Back-Bench debates committee at this point because it is unnecessary in view of the Leader’s proposal. In the light of that proposal, a Back-Bench debates committee would be a huge sledgehammer to crack a tiny nut. It could easily turn into a bureaucratic and expensive procedure, if full accountability was desired. One just has to think about it. Peers tabling subjects for topical QSDs would have to give reasons in papers or e-mails, and signatures of support would be sought. Minutes of the committee would have to be prepared; all conflicts of interest, not just financial, would have to be declared; and all lobbying, either ignored or debated, would have to be declared. A clerk would be required, plus an assistant to prepare papers. The committee would not be cheap and, if there is capacity for another committee, I would much rather the money was spent on more pre-legislative or post-legislative scrutiny.

As for transparency, the government Whips’ Office has given a very clear and welcome explanation of how debates and QSDs get on to the Order Paper. As for balloted debates, what is more transparent than pure chance, with all Peers having as good a chance as each other of having their subject debated? Do we really want to go down the road of having a group of our fellow Peers deciding which debates are more important than others? Why do we not give the Leader’s proposals a trial and, if there is dissatisfaction after that, come back to the idea of a Back-Bench debates committee?

[The Chairman of Committees]

My Lords, we have had a good and thorough debate, and I believe that all the possible arguments have been aired. At this stage, I beg to move that this House takes note of the sixth report of the Procedure Committee. After that, we get to the substantive Motion on the decision.

House of Lords: Working Practices

Baroness Thomas of Winchester Excerpts

Thursday 1st November 2012 Lords Chamber

[Baroness Thomas of Winchester]

My Lords, my contribution to this very welcome debate concerns the debating of statutory instruments and, in particular, draft affirmative instruments. I have the honour to chair the Delegated Powers and Regulatory Reform Committee. Soon, I hope that time will be found to debate the committee’s special report on strengthened statutory procedures for the scrutiny of delegated powers. What I am about to say is not explicitly part of that report but is hinted at under the heading “New Opportunities”. I should make it clear that I am speaking entirely on my own behalf and not as chairman of that committee.

I start from the premise that the scrutiny and debating of statutory instruments by Parliament is extremely important and that the more often Governments of all persuasions use secondary legislation for major changes to the law, the more important is Parliament’s role. Yet there is general frustration about the House’s role because, as we all know, SIs cannot be amended so there is a take-it-or-leave-it mentality built into the whole debate. That frustration is manifest in the increasing number of Motions to regret, or even to deplore, which have been tabled in recent months.

I do not disagree with the Goodlad suggestion on voting, but my proposition would be less drastic. I start with the word “draft”. In the outside world, draft documents can be changed before being finalised. Yet in the world of SIs, “draft” before the words “affirmative instrument” means only that the instrument has to come before Parliament to be agreed before it comes into effect, unlike negative instruments. What I believe the House would welcome in the case, say, of a major change in government policy is that the first appearance of the SI would be a genuine draft—not set in stone at that preliminary stage. Perhaps it could be called a consultative draft. It would then be debated in the Chamber and Peers could table and vote on advisory amendments, or even vote it down altogether, knowing that they had voted against only a draft document. If the Government lost such a vote, they would know the strength of feeling in the House. The Minister might well decide to change the final version rather than risk it being lost.

I well understand that in some cases, and I think in many, the Government genuinely consult MPs and Peers as well as outside bodies about the detail of certain important and potentially contentious instruments, such as the one bringing in the PIP criteria in what became the Welfare Reform Act. This is extremely welcome but it is done behind closed doors. There is much important detail in this suggestion that there is no time in this debate to explore, such as the parliamentary timetable and the impact on procedures in the Commons. However, I suggest it as a forerunner to the debate that I hope we shall soon have on the report I mentioned about the enhanced scrutiny procedures of SIs, which are laid down in various Acts.

House of Lords: Working Practices

Baroness Thomas of Winchester Excerpts

Monday 27th June 2011 Lords Chamber

[Baroness Thomas of Winchester]

My Lords, I, too, think that the report is masterly. I congratulate the committee and its clerk and endorse its recommendations.

I will concentrate on the section on delegated legislation and what the group has proposed. On first reading that section, I confess that I got the wrong end of the stick, so I thought that I would use my speech to try to unpack it a little—as much for my benefit as anyone else's. I hope that in doing so, I am not teaching my collective grandmothers to suck eggs, but here goes.

The whole purpose of that part of the report is to encourage the House to be bolder if it really does not approve of a particular instrument. The House is, perhaps understandably, squeamish about voting instruments down, and has found all kinds of ingenious ways around taking that fatal step. I myself have tabled reasoned amendments of a “regrets” nature on which I have called a vote, and the opposition Front Bench has become particularly keen on that course of action.

The reason why the House is so weak-kneed about voting down instruments is that if the Government lose the vote to approve an affirmative instrument or on a prayer to annul a negative instrument, that instrument is dead. It does not hover between life and death, it is dead, even if it has been passed by the other place—which we must now call the Commons, fair and square, if the report is agreed to.

The report, as I understand it, suggests that we all need reminding of what can happen next if an instrument is voted down. Although that is the end of the story for that particular instrument, the Government are perfectly within their rights to bring back another very similar or even identical instrument, the very next day if they want, to try their luck with that one. It would certainly be inconvenient for them, because both Houses will have to find time to consider the new instrument, but the Government do not have to wait for a new Session. Although the original Motion was fatal, it does not mean that the door is slammed in the Government’s face for that particular policy. One would hope that such a defeat would mean that, if the Government were intent on going ahead with the policy, the instrument would be redrafted with a change reflecting the debate, and perhaps with an interval of at least a few weeks to allow for that reflection.

The report suggests that the House passes a resolution asserting three things: first, the House’s freedom to vote robustly on the Motion to approve the instrument in the first place; secondly, that the purpose of the use of the fatal power is not necessarily to do more than to make the Government think again about the policy; and, thirdly, that if the Government, having considered the matter again, worked to lay a substantially similar instrument that had been passed by the Commons, the House would not vote the instrument down a second time.

In some ways, the last matter appears to be a curious one to concede, because one can foresee circumstances in which the House may be giving too much power away. If, for example, the previous Government were furious that the Lords had voted down the instrument allowing a super-casino to be built in Manchester a few years ago, all they would have needed to do was to introduce a broadly similar instrument a few weeks after the fatal Lords vote, put it to a compliant Commons, and then wait until the Lords passed it without a murmur. In that case, the Government of the day could have used a broadly similar instrument, but they chose not to. I guess that, with the recession looming, they were relieved that the Lords had saved them the considerable embarrassment of having a half-built super-casino at the height of the recession in a poor part of Manchester.

The Government did not take that course of action, and the only time it was taken in recent memory was when the House voted down the instrument to bring in sanctions against Southern Rhodesia in 1968. When the Government re-laid a broadly similar instrument a month or so later, the House passed it, although talks on Lords reform broke down as a result of the shenanigans. The House has never turned down a second instrument that anyone can remember. That means that the power that the House would sacrifice has never been used, to anyone's knowledge.

I believe that the House should take the risk of taking the steps suggested in the report. I cannot see that that would result in all hell breaking loose and the Order Paper being littered with lots of “decline to approve” Motions. After all, Governments change and there is usually inbuilt caution before an Opposition decide to take such a drastic course of action, because they know that it could be used against them sooner or later.