Queen’s Speech

Lord Butler of Brockwell Excerpts

Tuesday 24th May 2016 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I want to follow the noble Lords, Lord Wakeham and Lord Richard, and indeed the noble Lord, Lord Tyler, by concentrating my brief remarks on a dog that did not bark in the gracious Speech, or at least did not emit more than a whimper. I refer, of course, to the cryptic references to the Strathclyde report. The whimper in the gracious Speech was the sentence:

“My Ministers will uphold the sovereignty of Parliament and the primacy of the House of Commons”.

The fact that this was a whimper indicates that the dog is still with us, but, as the Minister confirmed today, the Government have not decided what to do about it. I welcome the Government’s hesitation because, while I believe that action needs to be taken to clear up the ambiguity surrounding the powers of your Lordships’ House in relation to secondary legislation, I agree with the three Select Committees, with the noble Lord, Lord Richard, and with the views expressed by the noble and learned Lord, Lord Judge, and my noble friend Lord Lisvane that this is an issue of constitutional importance, deserving careful examination by both Houses.

I greatly regret the rancour that has come to surround this subject, and I believe that it is unnecessary. As a contribution to the resolution of the issue, I want to advance four propositions on which I hope all sides might agree. First, your Lordships’ House has both a right and a duty to scrutinise statutory instruments with as much care as it scrutinises primary legislation and, if it thinks fit, to require the House of Commons to think again.

Secondly, however, as with primary legislation, the elected House must have the final say. In other words, the ultimate primacy of the House of Commons must apply to secondary legislation as it does to primary legislation. Thirdly, in the event of a disagreement between the two Houses, the House of Commons must be able either to claim or to waive financial privilege, as it does with primary legislation. I defer to my noble friend Lord Lisvane to reply to the remarks made by the noble Lord, Lord Richard, about the interesting situation relating to the appropriate cases in which financial privilege arises, because that is also an issue. Fourthly, these powers are all the more necessary when more and more substantial law-making is being contained in secondary legislation.

If these propositions are accepted, I cannot believe that it is beyond the wit of reasonable people to agree on procedures that allow your Lordships’ House to do its proper job on secondary legislation as it does on primary legislation. That would not reduce the powers of your Lordships’ House. On the contrary, it would strengthen them, because it would substitute powers which the House could use without apology, whenever it thinks fit, for powers that at present it has dared to use only half a dozen times in more than 50 years.

Finally, the Strathclyde review was criticised on the grounds that it described this issue as one between the Lords and the Commons, whereas the critics said that it is an issue between Parliament and the Executive. This again is something on which there is no need for disagreement; it is both.