Parliamentary Constituencies Bill

Lord Beith Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Thursday 26th November 2020 Lords Chamber

[Lord Beith (LD)]

My Lords, I thank the Minister, the noble Lord, Lord True, for his generous and kind words about Lord Shutt of Greetland—our friend David Shutt. They were very accurate and true. I knew David for over 50 years. He was a liberal to his fingertips, a democrat in every way, a proud upholder of nonconformist and Quaker values, and a proud Yorkshireman. He was a larger than life figure in this place and we will miss him enormously. If there is anything that I can do today by casting a vote that would further the cause in which he so profoundly believed—that young people must be drawn into our democratic system—I will do so with enthusiasm.

I refer to the amendment in lieu from the noble and learned Lord, Lord Thomas of Cwmgiedd. He has worked assiduously on the Bill to try to safeguard the important principles at stake. It was obvious to me and everybody else that, the moment that Parliament could not delay or block Boundary Commission proposals, attention in some political quarters would shift to those who draw up those proposals. The pressure would be on who is appointed as boundary commissioners. It therefore became important to look at that carefully. We have done so over the course of the Bill, but I do not think we have reached an ideal solution.

We are in an anomalous situation on the position of Lord Chancellor, as was pointed out by the noble and learned Lord, Lord Thomas, by detailed reference to the debates on changes to the post, which I remember vividly. I have great respect for the present Lord Chancellor, who served on the Justice Committee when I chaired it. I know that he is committed to the most important principles of our legal system, but this is not an ad hominem case; we cannot make it depend on one individual. It is about the system we have for the future. When many other changes were made, powers previously held by the Lord Chancellor shifted to the Lord Chief Justice, as head of the judiciary. This power should have gone the same way.

Parliamentary Constituencies Bill

Lord Beith Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Thursday 8th October 2020 Lords Chamber

[Lord Morris of Aberavon (Lab) [V]]

My Lords, I support the noble and learned Lord, Lord Thomas of Cwmgiedd, and I encourage him to press his amendment to a vote. I do not wish to repeat the observations I made in Committee in support of the noble and learned Lord, save to say that, first, as he has outlined, the office of Lord Chancellor is much more political now that it is held in the Commons. Instead of a quasi-judicial figure who sat as a judge in the Supreme Court and usually had no further political aspirations, we now have a highly political and mobile politician as Lord Chancellor in the Commons; these are not personal remarks.

As one who campaigned for the Ministry of Justice to be headed by a Commons Minister, and welcomed that, because it is a spending department, I have no complaint. But a political Minister should not have his hands on the machinery of elections—or, indeed, anywhere near it. The office dealing with elections should be manifestly independent.

There is one point that I wish to repeat: it is a parallel and wider argument. I noted the remarks of the noble Lord, Lord Hayward, a few moments ago, and in Committee I gave my experience as Secretary of State for Wales in appointing the chairman of the Welsh Local Government Boundary Commission. I certainly was a political Minister, and headed my party’s campaign in Wales for six years in my tenure as Secretary of State.

Local government boundaries are one of the building bricks of parliamentary constituency boundaries. On the previous amendment, the Minister confirmed that. I once lost the eastern part of my constituency because of a new county council boundary, and I had to be compensated by the addition of a number of wards from the same county council area to the rest of my constituency. My submission, therefore, is that not only should a judicial figure appoint the Boundary Commission, but the Government should also consider doing likewise for the Local Government Boundary Commission.

Since the power of appointment might already have gone over to the Government of Wales, it would too late to legislate for Wales. But the Government could certainly legislate for England. Indeed, I believe that they should do so. I shall be interested to hear the Minister’s views. Local government boundaries are inextricably linked to parliamentary boundaries, and decisions should be politically distanced on both of them.

[Lord Beith (LD)]

My Lords, when the Constitution Committee considered the Bill, we took the view that the removal of Parliament’s power to block Boundary Commission recommendations was constitutionally appropriate and therefore welcome. But we warned that automatic implementation of Boundary Commission recommendations would protect against undue political influence only if the commission itself is genuinely independent. This makes the selection and appointment of impartial boundary commissioners, independent of political influence, all the more important.

The noble and learned Lord, Lord Thomas of Cwmgiedd, has, at this stage of the Bill, moved an amendment that incorporates both his own original and entirely appropriate insistence that the Lord Chief Justice, not the Lord Chancellor, should make the appointments, and some of the other suggestions that the Constitution Committee referred to, which have been mentioned, in particular, by the noble Lord, Lord Hayward. The Minister should listen carefully to the noble Lord, who knows what he is talking about when it comes to boundary hearings. His insistence that we need to safeguard independence is entirely justified, and I hope that his disagreement with other aspects of the amendment will not deter him from continuing to support the efforts of the noble and learned Lord, Lord Thomas, to achieve the kind of independence that the noble Lord has recognised is important.

No assurances the Minister can give could possibly satisfy us that we have guarded against the danger that lurks here. That is because we are talking about any future Government, of whatever political party, who have a majority in the House of Commons, and thus the prospect of using that majority to disrupt the electoral process, or pervert it to their advantage, in ways that will always be defended on the most respectable grounds, beneath which, however, will lie political motives —motives of party advantage and protection.

What is extremely likely to happen is that, at some time in the future, a Government, recognising that they can no longer block Boundary Commission recommendations or delay them until after the next election, will say, “We’d better make sure we don’t get unwelcome recommendations that are disadvantageous to us, and which we might think are wrong in principle. We must stop that from happening by appointing to the Boundary Commission people who have got the political message—people who understand the significance of ensuring that our views remain predominant in any future Parliament.” These things happen; they are part of the reality of political life, and constitutional provisions are there to protect us from their malign influence.

Along with that, of course, goes perceived impartiality, to which the noble Lord, Lord Janvrin, referred. We are in an era when the principle of getting one’s revenge in first seems to apply in the United States. President Trump says, “If I win the election, it’s fine, but if I lose, it’s because the election has been rigged.” So he has already started his attack on the postal ballot provisions in American election procedure. That is an illustration of the fact that the impartiality of the electoral process is easily traduced or complained about, and if there are aspects of it that, on sound authority, can be shown to be at least weak in protecting impartiality, they will be criticised and exploited, and will be used as arguments to question the validity of the democratic process, at least in some individual seats, if not in the election as a whole.

This is an important matter, and I am disappointed, because I thought the Minister had realised that something could be done about it. There is still time for a Third Reading amendment that would at least pick out some of the proposals of the noble and learned Lord, Lord Thomas. To fail to act on that is to compromise an otherwise sensible and constitutionally appropriate change, by leaving this matter open to political pressures of a kind that cast doubt on the validity of elections.

[Lord Wallace of Saltaire (LD) [V]]

My Lords, as the noble and learned Lord, Lord Thomas of Cwmgiedd, has argued, the amendment reflects a constitutional principle. In an effective democracy, in which the power of the Executive is limited both by the rule of law and by the scrutiny of Parliament, regulatory authorities independent of undue executive influence play a vital role. Separation of powers between legislature, courts and Executive is central to constitutional democracy —and, as the noble Lord, Lord Hayward, said, they must be seen to be separate.

We are all painfully aware of the baleful impact of gerrymandering in American politics. The institution of independent Boundary Commissions is there to ensure that political representation in the United Kingdom does not follow any distance down that path. The change in the position of the Lord Chancellor that took place in 2005 makes it entirely appropriate, therefore, that the Lord Chief Justice should now inherit that role in England.

Our current Government have recently demonstrated worrying tendencies towards authoritarian populism. Their attacks on the Supreme Court and on judicial review have uncomfortable echoes of the approaches of the Polish and Hungarian Governments. The Electoral Commission is now under sustained attack, including from a co-chairman of the Conservative Party, for attempting to enforce the rules on campaign spending and political advertising. Calls from some Conservatives for its abolition suggest that they reject regulation of electoral campaigning as such.

Brexit: Civil Service Code

Lord Beith Excerpts

Thursday 17th September 2020 Lords Chamber

[Lord True (Con)]

I do not agree with that and I regret that the noble Lord—with his enormous experience in government, which I hugely admire—takes that view. Everybody in this House and outside who has had experience of working with the Civil Service, as I have over many years, understands the relationship. Sometimes we each have to do things—even Ministers—that, in our heart of hearts, we do not agree with. There is a clear process for civil servants who believe that they are being required to act in a way that conflicts with the code. That system exists and is set out in writing; it is available to the House and I am happy to circulate it to Members. The safeguards are there.

[Lord Beith (LD)]

My Lords, the Attorney-General is said to believe that the obligations under the Civil Service and Ministerial Codes apply to keeping domestic law, but not international law. Is that the Government’s position, or is their position, as set out by the noble Lord, Lord Faulks, when he was a Justice Minister, that:

“The obligations on Ministers under the law, including international law, remain unchanged.”—[Official Report, 3/11/15; col. 1522.]

[Lord True (Con)]

My Lords, I am not going to repeat in detail any position that the Attorney-General may or may not have set out. There are traditional rules on that. The Government’s legal position has been set out and sent to the chairmen of the Select Committees. Do the Government maintain the position set out by previous Administrations that law includes international law? Yes, they do.

Preparing Legislation for Parliament (Constitution Committee Report)

Lord Beith Excerpts

Wednesday 12th June 2019 Lords Chamber

[Lord Beith (LD)]

My Lords, it is a pleasure to follow the noble Lord, Lord Norton of Louth, and to pay tribute to his work on constitutional issues on the committee, in his professional career and in various other organisations that focus on them. I endorse his comments on the staff and advisers to the committee.

The two reports that we are debating today are linked, and not merely because they are two of a sequence of four studies by the Constitution Committee into the legislative process. They are linked by cause and effect. Excessive and inappropriate use of the delegation of powers undermines the quality of legislation, leading to legislation that is unclear, incoherent, inaccessible or badly scrutinised. Furthermore, the excessive use of regulations to fill in the gaps in legislation is often a consequence of a failure to prepare legislation properly. The policy has not been worked through and properly consulted on, so the Bill leaves gaps to be filled by regulations. This is particularly the case when new elements are added to a Bill in the course of its passage through Parliament. All new laws should have to pass the tests suggested to us by the Office of the Parliamentary Counsel: is it necessary, effective, clear, coherent and accessible? Many new laws do not, at least in part, pass those tests.

The legislative landscape is littered with Christmas trees, skeletons and signals. For the uninitiated, Christmas trees are Bills on which departments hang a diversity of provisions that they have not managed to get into the programme as individual Bills; skeleton Bills contain none of the detail and depend on delegated powers; and signal Bills may have no practical effect because their only purpose is as a declaration that the Government want to be seen to be doing something but cannot think of anything particularly useful to do.

The committee sets out remedies for these failings. First, legislation should have an evidence base which has been the subject of wide consultation and thorough scrutiny. Then the norm should be, as the noble Lord said, for Bills to appear first as draft Bills, scrutinised by committees of either or both Houses of Parliament. Issues identified can then be dealt with before the Bills acquire the level of political and government commitment, which leads to a defensive attitude and an unwillingness to amend. Parliamentary counsel should, as it has traditionally done, make clear where a legislative mechanism is unworkable, inappropriate or confusing in its legal effect. If it does so, within government it is the job of the Leader of the House of Commons and the law officers to challenge colleagues over such defects.

The Constitution Committee, as the noble Lord, Lord Norton, has pointed out, supports and reiterates the proposal for a legislative standards committee to test proposed legislation—not on the merits of its policies, but on whether new legislation is needed, whether its impact has been properly assessed and whether it creates coherent law. That process would sit alongside the work of the Constitution Committee and of the Delegated Powers and Regulatory Reform Committee in their examination of new Bills on the issues for which they are each responsible. The Constitution Committee also strongly commends accelerating the process of consolidating Bills. It is satisfying that, as we speak, the Grand Committee in the Moses Room is looking at the pre-consolidation legislation on sentencing, which accounts for the noble and learned Lord, Lord Judge, today demonstrating his ability to be and speak in two places almost at once.

If new Bills have been well prepared and have gone through the tests we recommend, they will be less likely to have the inappropriate recourse to delegated powers, which we have identified and criticised in our 16th report—the other report we are considering today. There will still be issues about delegated powers and the inadequate scrutiny which so often applies when they are exercised, particularly in the Commons. Some of us have experience of the brief and inconsequential Committee process which attends negative instruments in particular in the Commons.

We need also to reconsider how inappropriate or defective statutory instruments are dealt with in our own House. We were concerned that the question asked by departments and Ministers when considering whether to use secondary rather than primary legislation for important features of a Bill is not always an objective test of appropriateness, but a question of what Parliament will allow—what powers can be pushed through, perhaps on the back of general support for the policy objectives of the Bill.

Delegated powers are a necessary part of the legislative process, but the committee said:

“It is constitutionally objectionable for the Government to seek delegated powers simply because substantive policy decisions have not yet been taken”.


The DPRCC said that the Childcare Bill in Session 2015-16 contained,

“virtually nothing of substance beyond the vague ‘mission statement’ in Clause 1(1)”.

Our committee, like the DPRCC, has raised strong objections to the use of delegated powers to create criminal offences legislation or to set up public bodies. The Children and Social Work Bill presented to this House in the 2016-17 Session did both these things and was strongly criticised by us at the time. As the noble Lord, Lord Norton, referred to, we may be faced with a rivers authorities Bill which allows numerous public bodies to be created by delegated powers.

Henry VIII powers, by which statutory instruments can change primary legislation, are necessary for minor tidying—for example, to make sure that the law correctly cross-references legislation passed subsequent to the introduction of the Bill in question. However, their use should be strictly limited. If the Government continue to fail on this test, they will have my noble and learned friend Lord Judge to answer to.

When substantial issues come before Parliament in the form of statutory instruments, with very rare exceptions, they cannot be amended. If they are defective, or if they include provisions which are deeply controversial and might be rejected if presented separately, the House faces a take it-or-leave it decision on the instrument as a whole. Although it would be technically possible to allow for amendments, it would be a significant change. It would require different procedures and the committee is not recommending such a course.

The appropriate response in such circumstances is for the Government to withdraw the instrument and relay it in amended form or, in case of urgency, to bring forward an amending instrument at a later date. It does happen, but Governments are too reluctant to do it. Again, they are defensive: the instrument is their baby and they will not hear a word said against it, although I remember the late Patrick Mayhew, when he was Solicitor-General, announcing in a committee sitting that a Bill he was taking through was not capable of fulfilling its intended purposes and could not be made so, so would not be further proceeded with. That kind of refreshing honesty is something we could do with a little more of. The natural instinct of government, I fear, is not to admit it has got it wrong.

This House has a device to identify and object to failings in statutory instruments—regret Motions—but these have no direct effect; they are not fatal. They may be appropriate, but an expression of opinion is all that your Lordships intend. They are not adequate to prevent the fundamentally inappropriate use of a statutory instrument, which brings me to the case of the tax credits regulations of 2015, which had far-reaching effects. This House passed a delaying Motion. The Government had a blue fit and called in the noble Lord, Lord Strathclyde, to act as a sort of one-man fire brigade, but then abandoned the proposed regulations—an appropriate course of action in the end. In paragraph 109 of our report we set out why we think it is wrong to frame discussions on the question of what happened in that instance as if it were about the balance of power between the two Houses of Parliament, the Lords and the Commons. It is not; it is about the balance of power between Parliament and the Executive, about whether and how the Executive should be held to account.

As we have explained, the Government have the means at their disposal to confine delegated powers to the purposes for which they are legitimately intended and to correct faults in them identified by Parliament. If they fail to do so, they should recognise that an occasional defeat is neither momentous nor necessarily fatal to their policy objective. This House exercises great restraint in these matters, but the committee makes it clear in its unanimous conclusions that:

“If the Government’s current approach … persists … the established constitutional restraint shown by the House of Lords towards secondary legislation may not be sustained”.


Those words were not chosen lightly.

Census (Return Particulars and Removal of Penalties) Bill [HL]

Lord Beith Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 4th June 2019 Grand Committee

[Lord Judge (CB)]

My Lords, these are simple amendments directed to an issue of principle. The issue is very simple. It is a criminal offence to fail or refuse or neglect to complete the census form—note “to complete it”: that is, to answer every question. Over the years, it has come to be accepted that some of the answers should not be matters of obligation—in particular, in 2000, providing answers to a question relating to matters of conscience such as religion; or, now, in the current Bill, sexual orientation and gender identity, matters which are obviously intensely personal. The reasons are obvious and I support them.

It is plainly the intention of the legislation that each individual responding to the census will have a choice on these questions: you may choose to answer or you may not. If you choose not to answer, you will, in the words of the legislation, not,

“be liable to a penalty”.

Even if you are prosecuted, no penalty could be imposed: you would get an absolute discharge.

What, then, is the problem? Why am I making a fuss? I am making it in the company of the Constitution Committee, of which I have the privilege to be a member, which expressed its concerns in one of those very short, simple letters. In summary, it comes to this: because no legislative provision expressly decriminalises the choice not to answer, the Bill should be amended explicitly to state that such a failure is not a crime.

By letter dated 31 May, the Minister gave a very considered, lengthy reply to a very short letter. My experience is that, on the whole, those with the best points write short letters. However, ignoring that general experience, which may not be true here, I have discovered from the letter that, based on a starting point for the legislation in 2000 relating to religion—dare I point out, before we had a Constitution Committee?—the promoters of the Bill confused, conflated or perhaps simply failed to understand that the removal of the risk of a penalty meant that answering or not those questions was voluntary, and therefore there was no criminalisation. They confused crime and penalty. They are distinct concepts. Normally, the conviction comes and the penalty follows. What we have done—what is proposed here and was proposed and carried in 2000—is to wipe out the penalty but leave the crime. At the very least, it is arguable—I would say strongly arguable—that what we have now, and will continue to have without the amendments, is a crime of not answering the question but no penalty for choosing not to do so. That does not seem very sensible.

It is obvious that the Bill’s objective to decriminalise any such failure. That is the point of it and why it is supported. Why is conduct that carries no penalty and is not intended to represent even minute contravention of the criminal law allowed to disfigure it by remaining on the statute book? I respectfully suggest that that is wrong in principle. The Bill should be amended expressly to decriminalise any such conduct and any necessary amendments in relation to questions about religion in the 2000 Act made subject to identical amendments within the Bill. That is the purpose of the amendments.

It is not an answer that the Crown Prosecution Service would not prosecute. It is not an answer that if the Crown Prosecution Service prosecuted and someone were convicted, no penalty would be imposed by the court. I mention that in this context. We hear rather a lot about private prosecutions these days. If there were a private prosecution—I know that this is hyperbole; there would not be, but let us examine this as a matter of principle—the court would no doubt have in mind that on conviction there would inevitably have to be an order for absolute discharge. Of course it would. The court might rage in the way that old judges did but do not any more because they are much more polite than they used to be. It might rage against the absurdity of any such prosecution, but I respectfully suggest that it could not as a matter of certain law say that the failure to answer the question did not constitute a criminal offence. We really cannot have that situation; there must be certain law about this. We must do better and decriminalise a failure to answer such questions. I beg to move.

[Lord Beith (LD)]

My Lords, I support the noble and learned Lord’s amendment. I apologise to the Committee that I was not able to speak at Second Reading, but the discussions in the Constitution Committee, of which I am also a member, have brought to light the seriousness of this problem within what is otherwise a highly commendable and necessary Bill. I am afraid that I have form on this subject: on 25 March 1975, I moved an amendment to the census order—it was possible to move amendments to those statutory instruments unlike to almost all others—precisely to assert the principle that, so far as the procedure allowed in that case, the state should not turn people into criminals because they had some good conscientious reason for declining to answer questions in such areas as were not fundamental to the state knowing where its population was, how many people there were and in what kind of properties they lived.

I remain of the view that it is undesirable for the state to extend its reach by way of criminal offences that put people in that position. As my noble friend did in the context of the previous debate, I hope that the guidance and what is said to people by those who hand out and collect census forms will assist in reassuring them, but, like the noble and learned Lord, Lord Judge, and the Constitution Committee, I believe we are legislating unsatisfactorily. The primary reason for doing so given by the Minister in his careful and lengthy letter was that, unless we made certain further provisions to tidy up other legislation, we might create a degree of ambiguity. I found that unconvincing; I do not think any court would be in any doubt as to what Parliament had intended if it phrased this part of the legislation so as to make it quite clear that it was not creating or continuing a criminal offence of failing to answer questions relating to sexual identity and gender.

Everybody seems to agree with what we are trying to do. Let us for heaven’s sake do it in a way that makes our legislation both sensible and not threatening to individuals who perhaps do not view these matters in the detail that we have been required to do today.

[Lord Lipsey (Non-Afl)]

My Lords, as one would expect, the noble and learned Lord, Lord Judge, has made an extraordinarily powerful case. I really think that the Minister, as well as restating his case, which is wide of these amendments, is obliged to expand on “why not”, preferably in words a normal person could understand and that are not deep in a complicated letter.

All sorts of people may come to us during the census period and ask, “What’s my legal position if I don’t want to fill this in?” Does everybody feel confident, having heard the noble and learned Lord, Lord Judge, that they could readily explain the situation to those who came in and saw them? Can they readily show that those people would understand immediately that, although they may be committing a criminal offence—though not one to which any penalty attaches—it would be perfectly all right and no future employer would ever hear about it? I am not trying here to construct a legal case, because I am not a lawyer; I am trying to reflect the reality that may exist if the Bill goes through without the amendments tabled by the noble and learned Lord, Lord Judge.

Public Procurement (Amendment etc.) (EU Exit) (No. 2) Regulations 2019

Lord Beith Excerpts

Thursday 14th March 2019 Lords Chamber

[Lord Arbuthnot of Edrom (Con)]

My Lords, I wonder whether my noble friend can help me. In view of the contingent nature of these SIs, is it the Government’s policy to honour the result of last night’s vote in another place?

[Lord Beith (LD)]

My Lords, that is a question I shall leave on the charge sheet for the Minister to deal with in a moment. Indeed, there is a wider political question around these statutory instruments to which the Minister delicately referred, in careful language, which is that there are those Brexiteers who argued for Britain’s departure from the EU on the basis that we would be free of all these rules and restrictions, including those which, in sum and on balance, genuinely benefit British industry but which do not always suit either a particular business or a local authority which wants to give the business to some more local concern. This was one of the things that was so often quoted during the referendum debate as something we would get rid of, whereas most of us knew that these were so much to our advantage that, even if Brexit did happen, we would retain many of them, as we see is happening today.

Budget: North East of England

Lord Beith Excerpts

Thursday 14th December 2017 Lords Chamber

Asked by

[Lord Beith]

To ask Her Majesty’s Government what assessment they have made of the likely impact of measures announced in the Budget on the north east of England.

[Lord Young of Cookham (Con)]

My Lords, the Budget has provided a significant and very positive impact for the north-east of England, with more than £300 million to replace the Tyne and Wear Metro fleet, Transforming Cities funding for Tees Valley and an investment fund of £600 million over 30 years as part of the “minded to” devolution deal for the north of Tyne.

[Lord Beith (LD)]

My Lords, the funding for the Tyneside metro is welcome, but the big announcement in the Budget was the half-baked devolution deal. Does the Minister realise that the region has none of the transport, health and social care powers and still less the level of funding which other regions such as Manchester and Birmingham are getting? It has a boundary cutting right through the middle of Tyneside and it focuses on the creation of an expensive elected mayor who nobody asked for and very few people want. What, if anything, will this deal do for the low-wage rural areas of north Northumberland, so often outvoted by the Tyneside areas on which this deal will focus?

[Lord Young of Cookham]

My Lords, I welcome what the noble Lord said at the beginning about the metro. The rolling stock is some 40 years old and is not as reliable as it should be, and the new rolling stock will make the north-east an even better place in which to live and work. So far as what the noble Lord calls the “half-baked deal” is concerned, for those not familiar with the story so far, seven local authorities in the north-east approached the Government, under the umbrella of the North East Combined Authority, for a devolution deal. This was in accordance with the Government’s wish to decentralise decision-making and give local areas more powers and resources. Half way through the discussions, four of those local authorities withdrew. Those who understand the socio-political dynamics of the north-east and the tribal tensions of the Tyne may understand why—but I do not. The decision for the Government was whether the three remaining local authorities of Northumberland, Newcastle and North Tyneside should go ahead. Those authorities want to proceed, as do the business community and the local enterprise partnership. For those reasons, the Government are minded to proceed and the ball now rests in the court of the three local authorities to go through the statutory consultation and pass the local orders.

House of Lords Reform Bill [HL]

Lord Beith Excerpts

Friday 3rd February 2017 Lords Chamber

[Lord Beith (LD)]

My Lords, it is a pleasure to follow the noble Lord, Lord Low, even though I disagree with both his view on the role of democracy in the House of Lords and the picture he paints of what might be the necessary consequences of having more than one elected body in the country fulfilling different purposes. We have many elected bodies in this country, including local authorities. Their existence does not destroy the accountability of the House of Commons for those things for which it has responsibility.

I am very glad that we have the opportunity to discuss this topic today. That is our debt to the noble Baroness, Lady Jones. I should make clear that I am a member of the Lord Speaker’s Committee on the Size of the House, which the noble Lord, Lord Low, mentioned, chaired by the noble Lord, Lord Burns. The task of that committee is to consider whether there are ways in which the size of the House could be reduced for which widespread agreement could be secured and which could be brought in relatively quickly. I commend to Peers the short consultation paper that the committee has produced, inviting them to give their views if they would like to do so. The Burns committee is not about fundamental reform of the second Chamber, such as the creation of a predominantly elected Chamber. It neither precludes nor advances such a change.

Fundamental reform was in the 2010 election manifesto of all three parties and the Bill to bring in a predominantly elected second Chamber received a Second Reading in the Commons with a majority of 338—that is on a scale comparable to the Article 50 vote on Monday. But that Bill was blocked from further progress by a minority of Tory MPs who were totally opposed to any elected second Chamber and who hold views similar to those of the noble Lord, Lord Norton, and by the Labour leadership, who were committed to reform but unwilling to support any timetable for the Bill, without which it could not be carried through.

We are now in a new situation. It would be an extraordinarily optimistic person who thought that we could get through legislation on Lords reform in a Parliament which will be overwhelmed by the vast corpus of primary and secondary legislation that will be involved in leaving the European Union. Perhaps the noble Baroness shares the tendency to political optimism which is often a characteristic of Liberal Democrats.

Her Bill has many similarities with the coalition’s proposals and with Liberal Democrat policy. It provides for what we regard as the essential ingredient of democracy while recognising that the second Chamber should be elected on a different basis from the Commons and on a different timescale. However, retaining all existing Peers except hereditaries as non-voting Members outnumbering the voting Members would produce a very strange assembly with obvious tensions. The noble Baroness may be making a massive concession before the process of negotiation has even begun in order to get turkeys to vote for Christmas.

However, the House of Lords will change in this Parliament, despite the impossibility of major Lords reform going through. It will change because of the repeal Bill—which I refuse to call “great”. In any case, it is not a repeal Bill but a re-enactment Bill. I do not remember that the great Reform Bill was ever called “great” until after it had been passed—and some of its opponents probably still did not call it that.

The task facing both Houses, but especially the Lords, is massive. A huge area of law will be covered by statutory instruments and Henry VIII clauses, many of which will not have been discussed in the Commons. Transfer of EU law cannot be achieved without numerous consequential changes, with many matters of policy dealt with in secondary legislation. Alongside that problem, Governments will continue from time to time to threaten dire consequences for the Lords if this House causes the Executive any serious difficulty or inconvenience. These range from the various Strathclyde proposals to remove powers—on the shelf at least for the time being—right through to the creation of a large number of new Peers to give one party a majority, or even to abolition.

All this is extraordinary, given the resistance to reform. It must mean something. What are we otherwise to understand from some of the language used whenever the Lords threatens to exercise its ability to send a matter back to the Commons? Sir William Cash said in the debate in the Commons on Monday:

“If the House of Lords were to attempt to stand in the way … it would be committing political suicide”.—[Official Report, Commons, 31/1/17; col. 838.]


Quite what that political suicide consists of he did not make clear, but the language was not that different from the initial response of Ministers to the Strathclyde proposals when they were first published—even though there was some welcome pulling-back by the Leader of the House shortly afterwards.

The threats are constantly used and they come, extraordinarily, from those who we assume are not in favour of fundamental reform of the Lords but would be prepared to change it in circumstances where it posed them too much difficulty. The threats are used mainly when the House of Lords considers exercising its right and duty to ask the elected House to think again—usually about a specific subject within a Bill or statutory instrument. Such a role will be needed if some of the statutory instruments under the repeal Bill are used to make substantial policy changes which should be dealt with in primary legislation. If that happens, at some point the Lords will have to send something back to the Commons and demand that it be reconsidered.

It can be said that the Executive are getting the best of all worlds: a House of Lords which, if it causes Ministers any significant inconvenience or delay, is put on notice that it will be curtailed in unspecified ways. The fact that the House has no democratic legitimacy of any kind is used as the argument to prevent even the exercise of its traditional role of making the elected House think again. There is something ironic about the Executive threatening the Chamber with fundamental change when reform has been prevented by the two parties that have been in a position to bring it about and failed to do so.

In my view and my party’s view, it remains impossible to justify the continuance of appointment and patronage as the predominant means of deciding who serves in the second Chamber of the legislature. That one of the two Chambers of our Parliament should be created almost entirely by patronage and appointment is unconvincing to any audience of British schoolchildren, let alone to visitors from relatively new democracies who have struggled to get rid of unelected power. The second Chamber should have democratic validity: not a mandate like that of the House of Commons, based on the most recent general election, but a system which ensures that its legislators are chosen by the people and serve for longer periods than a single Parliament, and that the second Chamber operates within the powers conferred by the Parliament Acts, recognising the primacy of the Commons. This Bill is an attempt to achieve that objective. Although it has defects and problems that will be discussed, it is an opportunity to launch that discussion again.

Northern England: Opportunity and Productivity

Lord Beith Excerpts

Thursday 12th January 2017 Lords Chamber

[Lord Beith (LD)]

My Lords, it is a pleasure to follow the noble Lord, Lord Bragg, not least because only a few hours ago I was listening to him on the radio asking searching questions about the philosophy of Nietzsche. I thought it was going to be a sharp change of gear but actually he brought some of the same broad perspective to his very enjoyable speech today.

I welcome this report and the suggestions it makes. I want to look at it alongside another valuable report—the North East Chamber of Commerce’s manifesto for the year ahead. I pick out one thing initially from the latter report: dismay at the failure to make progress on the devolution deal for the north-east of England. You might think that where every local authority in the region has Labour leadership they would manage to agree with each other and make progress, but no such thing has happened. They disagree with each other and the Government have not been helpful either. I would like to see the Labour Party get its act together and start to reach agreement on the devolution process and the Government to stop making as a precondition of progress on devolution the creation of an elected mayor, which is not a relevant concept for this kind of region. The two sides should now get together and start making some progress.

However, there is a lot more we need in the north-east of England. Sometimes when people from my part of the world hear debates about the north they feel that quite a lot of it is about the Midlands, rather than areas which are to the north of much of Scotland and feel that sense of remoteness as well. We have a superb higher education sector in the north-east of England but there is also a large skill shortage, which the IPPR report points out. We therefore need to strengthen both our further education sector and access to it, which is very difficult given the large distances involved in much of our region. In my home town of Berwick, for example, it is no longer possible—because the Labour council would not agree to it—to have support for young people going to further education colleges in Newcastle. The only feasible way to do that is to go by train. Lots of people are denied the access that would improve their skills and give them opportunities in the labour market. As the IPPR report identifies, partly as a consequence of this we are short on the knowledge-based industries and the rate of progress and expansion of knowledge-based industries is slower in the north-east than nationally and the skill shortage must be part of that.

Of course, there are infrastructure improvements we want to see. I spent a lot of my time in the Commons arguing for dualling of the A1 and I am still arguing for it because progress even on what was agreed under the coalition is still slow. When we hear talk of HS2 we are actually more interested in what happens to the east coast main line and increased capacity and improved reliability on it. There are many infrastructure decisions which, as other noble Lords have pointed out, would make a huge difference to our potential in the region.

Brexit features in both reports and both sound loud warning bells about the dangers in a region where 58% of exports are to European Union countries. There is a particular fear about a potential period in which we may have left the European Union—and the Prime Minister has not shown herself interested in staying in the single market or the customs union so it may be on this basis—and still do not have new trade deals with other countries to fill any of the potential losses when exporters to Europe will find themselves faced with tariff barriers and non-tariff barriers, which are sometimes more significant than the tariff barriers for being able to export into a country or a whole region such as Europe. We really need a different approach.

[Lord Spicer (Con)]

I am terribly sorry that I did not hear the beginning of the noble Lord’s speech, but he is on about Brexit and the north-east.

[Lord Beith]

I apologise to the noble Lord, but he is depriving me of the opportunity to make a very important point, with which I want to conclude.

The process of dealing with Brexit requires communication between the Government and the north-east of England. In November, I read in the Evening Standard that the Secretary of State for Exiting the European Union, David Davis, had agreed with the London mayor, Sadiq Khan, that he would have a monthly face-to-face meeting both before and after the triggering of Article 50, so that the position of London could be understood at every stage of the negotiation. As far as I know, there is no such arrangement for the north-east of England. The IPPR report suggests a resilience committee to deal with that and open up that communication. In some way or other, the Government have to listen to the north-east’s special concerns and set up a mechanism to ensure that it is listened to throughout this process.

Lobbying (Transparency) Bill [HL]

Lord Beith Excerpts

Friday 9th September 2016 Lords Chamber

[Lord Beith (LD)]

My Lords, I am glad we have the opportunity to debate this Bill because there is no doubt that the scale and opacity of lobbying is a problem. What is more in doubt is whether as presently constructed it will materially assist us in dealing with and regulating the problem. I have some reservations about it and some suggestions on what to include in it which might do more to assist us than merely extending the register on a very large scale, as the Bill proposes. Indeed, I fear that the Bill could be crushed under its own weight because of the sheer number of people who would be drawn in to the definition of a lobbyist. There are people about whom there is no doubt that if they raise a matter with public officials, they are doing so on behalf of the organisation they work for, but the net would be very wide. It would include the garage manager who calls the Environment Agency because he wants a bit more time to comply with the requirements that have been set or the teacher who writes not to her own Member of Parliament but to the Secretary of State for Education to say that the new curriculum proposals are extremely unhelpful. A huge range of people would be caught in that they would be required to be registered, but it would not really get us very far.

Although I can see the underlying logic of asking why people who are commercial lobbyists working for several different interests should be registered while in-house lobbyists are not, at least with the latter you know who they are lobbying for. We know that they are people working for an organisation and are likely to advance its interests using whatever opportunities they have. So the question is: how can we make sure that the process people are engaged in when they are lobbying is more transparent than it has been in the past? It is on that area that the Bill could more usefully concentrate.

So far as commercial lobbyists are concerned, we would be in a better position if we knew more about their sources of finance; that is, if we knew how just much money companies are paying commercial lobbyists to lobby on their behalf. The fact that under the register system at the moment a firm can declare no clients at all seems suspicious. If there were further requirements for financial declaration, the question of who is paying the piper could be asked more effectively. That is an area in which commercial lobbying could be addressed by improvements in the legislation.

On the wider range of the Bill, again, rather than looking to alter the register, why do we not improve the information that is available about the lobbying that is taking place? Meetings can be covered by very brief and insufficient descriptions such as, “Defence matters are being discussed”. That could be anything from the potential threat on the eastern borders of NATO’s territory to the precise details of the next warship order—if there ever is a next warship order—that the department is going to place. Even in areas where there are not the same confidentiality requirements as might be imposed in defence, if the matter being discussed is “aviation” or “the railway industry”, that is not enough to provide an explanation of what lobbying is taking place. It would be helpful if all these statements could be gathered together on the government website and that was searchable. That would be a distinct improvement on the current arrangements, and I ask the Minister to look at this.

Whose meetings should be involved? I refer back to what was said by the noble Lord, Lord Lansley. Meetings with special advisers are clearly sought after by lobbying organisations to press their case because they play a crucial role. It is unimaginable that they should continue to be left out of the process. Meetings with special advisers therefore ought to be included. Noble Lords will recall that before my time here the House agreed to that, and an amendment to that effect was removed in the Commons in the course of the exchanges between the Houses on that Bill. It is something that we ought to return to. There is a series of quite specific things which could gather up the lobbying that is taking place more effectively than trying to impose a regime right across the activities of the entire commercial and public sectors. That would be a huge task.

Several comments have been made about the 2014 legislation. I am in favour of post-legislative scrutiny. It is important that there should be some scrutiny of that legislation. After all, an awful lot of things were said at the time not only about the lobbying aspects of it, but even more about the impact of other parts. It would be a bit of a challenge for a committee to retain its non-partisan approach when carrying out such scrutiny, but the Bill before us today is a reminder that that Bill was only part of a process that needs to be continued. However, in continuing it we should concentrate on what will improve our knowledge of what is going on rather than simply create a mechanism so wide and involving so many people that a lot of money would be spent to very little outcome.

--- Later in debate ---

[Lord Brooke of Alverthorpe]

My Lords, I am grateful to all Peers who have contributed to this very interesting debate, and I will endeavour to answer as many of the questions they have raised as I can. I start with the noble Lord, Lord Lansley, who is opposed to the Bill. However, having heard him and then the Minister’s response, I rather wish that he was back in government. There is a balance to be struck. Often my Front Bench say to me that I am too nice to people. However, when I hear the Government respond in the way they have, I look for that little bit of anger inside me that rarely comes to the fore. As I said, there is obviously a balance to be struck, but almost every speaker today has said that the existing law is not working and is not fit for purpose—it is not producing anything.

The noble Lord, Lord Lansley, talked about the burden that the Bill would impose. I conceded that there would be an added burden, but I responded to that in terms of my practical experience of life and talked about how, by using technology—I underline technology very much, and my noble friend Lord Howarth picked up on that too—we can do things much faster than we ever did before without placing a great burden on people.

Several noble Lords spoke about the diaries and I will come back to that. When I read through the previous debate on this matter, I was rather attracted to the concept of diaries being developed and of them being at the heart of this issue. However, the more work that I have done—my noble friend Lady Hayter put her finger on this—the more I have seen that in many respects the diaries are not fit for purpose. That is especially the case when one learns that many Ministers keep two diaries—one for public presentation and the second for other activities that fall in the political field, where indeed lobbyists turn up as well.

I freely concede that definitions are not easy, yet the Bill would broaden the definition of lobbying, making it significantly wider than it is at present. The noble Lord, Lord Lansley, said that spads should be included. I believe that many more people beyond spads should also be included. For many years I have campaigned on alcohol issues and I speak to people at the middle levels of the Civil Service. The noble Lord said that they are the decision-makers. They do not take the decisions but, by God, do they have an influence on when the decisions are made. We need a register that covers the contingency, and it needs to be extended to take in the people at those middle levels right across the public service. They are very influential people indeed. Ministers come and go but many civil servants stay, and that must be borne in mind.

The noble Lord mentioned APPGs. We should have put those on the list to be covered and I regret that we overlooked that. If he would like to include that in an amendment, we would be prepared to look at it. If the noble Lord has any other specific issues that he would like to discuss with me, I am happy to accommodate him and to make changes. I am very much in the mode of trying to keep this moving forward seriously. When I look at what we have before us and what it is costing, I think it truly is a scandal. There has to be a change and very quickly. The Bill presents the alternative.

I am grateful for what was, as usual, an outstanding speech from my noble friend Lord Howarth and for his support. Like my noble friend Lady Kennedy, he highlighted the influence of lobbying across such a wide front. That is not just in the UK but worldwide. Capitalism is now running around the whole world. It is quite unaccountable in many areas and this legislation is an attempt to bring it to book.

My noble friend mentioned digital technology, which is very helpful. He also raised the issue of “commercial in confidence”, which is used in many instances to avoid answering the direct questions that come from parliamentarians. That should be brought to an end.

The noble Lord, Lord Beith, talked about the difficulty of definitions around the edge, and I do not deny that. However, I think he took it to the other extreme, and I am happy that he was corrected by other speakers.

Without a doubt, there are problems around websites. The noble Lord also raised the point about diaries, which I will come back to. The diaries are a step in the right direction but they do not provide all the information that we need to answer the kind of criticisms that we are getting.

The noble Lord, Lord Beith, talked about who should be involved. Again, I emphasise that we need to go way beyond those presently defined in the Act. There is a sensible point between when someone is lobbying and not lobbying and who is involved. I believe that that balance is provided in the legislation I am proposing. The noble Lord proposed post-legislative scrutiny as an alternative—

[Lord Beith]

Not an alternative.