House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill [HL]

Lord Butler of Brockwell Excerpts

Friday 23rd March 2018 Lords Chamber

[Lord Grocott]

My Lords, this group of amendments includes a number which would kill the Bill. Amendment 5 would leave out subsection (2) and Amendment 24 would leave out subsection (3), but if we leave out subsections (2) and (3) we would not have much of a Bill left. In truth, the noble Lord, Lord Trefgarne, is confirming my suspicion that he is trying not to improve the Bill but to kill it, so I hope that he will withdraw his amendment.

[Lord Butler of Brockwell (CB)]

My Lords, this is the only opportunity I have to say that it is not often I would do anything which the noble and learned Lord, Lord Mackay, did not approve of. But I voted against the Motion and I want to make the point that it was the only way in which the House could send a message to the Government, and to people outside, that the House is greatly in favour of the Bill going forward.

[The Earl of Erroll (CB)]

My Lords, I am terribly sorry to intervene but the reason I did not vote on it was exactly the opposite. The Motion actually referred to regret about the Burns report; it would not in fact have prevented the Committee stage or any part of the Bill. It expressed regret that it had not been done, so, having read the Motion, I do not think that it conveyed exactly what people thought.

--- Later in debate ---

[Lord Mackay of Clashfern]

I want to just say, in support of what the noble Lord, Lord Grocott, has said, that my understanding is that this Bill has received a Second Reading. Therefore, it is inappropriate to propose amendments that have the effect of destroying the Bill, because that is trying to reverse a decision that the House has already taken.

The other thing that I want to say is that my noble friend Lord Butler and I have worked together for years and years, but I dispute very much the idea that the only way in which this House could indicate in a very strong manner that it supports the Bill proposed by the noble Lord, Lord Grocott, is by an absurd procedure that requires two Members of this House to record their vote in opposition to what they really believe. I think that there would be something very seriously wrong with the procedures of this House if there were no other ways in which the House could show its support of the Bill.

The other empirical observation that I want to add is that, if you want to make progress on the whole, it does not help you to interrupt the people who are opposing you.

[Lord Butler of Brockwell]

Before the noble Lord sits down, can I just say in reply that, if he reads the newspapers tomorrow or listens to “Yesterday in Parliament”, he will hear that the way in which the House demonstrated that it wanted to support the Grocott Bill was through that Bill.

[The Earl of Erroll]

My Lords, I want to say one thing on Amendment 59, which is the last one in this group and is a non-destructive amendment, which is why intrigued me.

Brexit and the EU Budget (EUC Report)

Lord Butler of Brockwell Excerpts

Thursday 6th April 2017 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, the members of the sub-committee which produced this report have perhaps been blowing their own trumpets. However, in this case we are justified in doing so because, under the skilful chairmanship of the noble Baroness, Lady Falkner, this report is a good example of the service which your Lordships’ House can perform for Parliament and the country as a whole.

As the exposition of the noble Baroness, Lady Falkner, made clear, the report covers two principal aspects. First, it describes and seeks to quantify the elements of the EU’s budgeting arrangements which may contribute to a claim on the UK for a payment or payments from the UK after we leave the EU. Secondly, it seeks to establish the legal position of the UK’s liability for such payments. Those legal aspects were discussed in the contributions of the noble Lords, Lord Davies of Stamford and Lord Thomas of Gresford, and I am not going to dwell on them.

It is fair to say that it surprised Members of the Committee —it certainly surprised me—to hear the legal advice that, in the absence of an agreement, the EU will have no means of enforcing any financial liability against the United Kingdom. I note that if the advice is correct, however, the phrase “a divorce settlement” is misleading. In a divorce a court determines the liabilities of the parties and has the means to enforce that determination. In this case the legal advice is that in the absence of an agreement to the contrary, the jurisdiction of the ECJ ends on our departure. Again, I do not want to dwell on the legal aspects. I have used the phrase, as have others, “in the absence of an agreement”, and I emphasise it. Of course we want an agreement. We have much to gain by getting one and a great deal to lose by not doing so. It is important to note, as the noble Lord, Lord De Mauley, said, that in the aspect of finance it is the EU which will lose in the absence of an agreement. Since the UK’s gross contribution is currently one-eighth of the EU’s annual budget, there is much at stake here, so no wonder it wants to make progress on this issue before discussing the other aspects of our future relationship.

Both sides should want a reasonable agreement on this issue. What should a reasonable agreement look like from the UK’s point of view? The Government have said, I believe rightly, that the UK would,

“continue to honour our international commitments and follow international law”.

The Chancellor of the Exchequer has said something similar about meeting our obligations. Monsieur Barnier is quoted today as emphasising the importance of an agreement to the EU, although he has quoted an exit payment approaching a figure of £60 billion. The report seeks to identify and discuss the main elements, and like the noble Lord, Lord Thomas of Gresford, I should like to take them in turn.

First, as the noble Lord, Lord Thomas, pointed out, the UK will be leaving the EU some 19 months before the end of the current multiannual financial framework. That framework sets a ceiling on the EU’s expenditure. It is not a commitment to expenditure. The UK was a party to it but it does not commit us to spending up to the ceiling which we agreed in that negotiation. If the UK’s gross budget contribution of 12.5% ends in March 2019 it will leave a big hole in the EU’s spending plans, and if instead of ending its contribution on departure the United Kingdom were to continue its budget contribution until the end of the current period of the framework, the committee calculates that that might cost the UK some £15 billion. But as I have pointed out, the MFF sets a ceiling; it is not a commitment to spend, and here I differ from the noble Lord, Lord Thomas.

The commitment to spend is set by the annual budget—

[Lord Thomas of Gresford]

My Lords, with respect, I suggested not that we were committed to pay under the multiannual financial framework, but that we are committed to spend on the budgets which rely on the MFF in order to come to a conclusion of what can be spent.

[Lord Butler of Brockwell]

I accept that but the point is, as the noble Lord has said, that the budgets for the periods after we leave have not yet been set so we are not committed to them. The annual budget for 2019 and 2020 has not been set, so I regard any claim on the UK in respect of those years as weak. As paragraph 46 of the report points out, this view seems to be shared by the German Finance Minister, Wolfgang Schäuble, who has said that it will be necessary to negotiate a new MFF on the assumption that the UK contribution ceases in 2019—when we depart from the EU. Continuation of the UK’s payment under a multilateral financial framework that continues after we have left is not in fairness a strong claim on the UK.

The second element of a possible EU claim is the commitments made in budgets to which the UK has been a party, which will remain to be paid after March 2019—the so-called reste à liquider, or remainder to be liquidated. Like others, I regard this claim as stronger. There is probably no legal obligation to make these payments after the UK has left the EU, but it may be argued that there is a moral obligation since the commitments were entered upon and budgeted for while the UK was a member.

The EU estimate of the commitments that will be outstanding at the end of 2020 is £254 billion. We do not have an estimate for the outstanding commitments at the end of March 2019, but since commitments contracted for but not paid tend to diminish as the MFF wears on, the figure at the end of March 2019 for outstanding commitments may be higher. However, as has been pointed out, some of these may never materialise. Moreover, some commitments are to the UK itself. These should be netted off, after which the UK share of commitments to other partners is unlikely to amount to more than £10 billion. If the UK were to agree to meet these it would be sensible to do so not in a lump sum but over the next few years as the commitments materialise.

It is right to add that the respected Brussels think tank the Bruegel Institute produces a much larger figure for commitment outstanding, including a large element under the heading, “significant legal commitments”. These are commitments pledged in legal terms but not yet budgeted for. Since they are expected to be budgeted only over a long period, they are not included in the EU’s balance sheet nor in the reste à liquider. In this case it seems difficult to argue that the UK has any liability for these unbudgeted items after leaving the EU.

Thirdly, there is the possibility of a claim based on pension liabilities for past or present employees of the EU or its institutions. Here I agree with the noble Lord, Lord Thomas of Gresford, that this is a weak basis for a claim. UK nationals constitute some 4% of EU staff at present and have never been more than 8%. The Commission currently estimates its actuarial liability for future pensions at €63.8 billion. However, pensions are paid out of each year’s budget. Employees make a one-third contribution to them. Like the noble Lord’s, my view is that, on leaving the EU, the UK has no greater liability to contribute to the annual pension bill that someone leaving a club would have to contribute to the pensions of past and present employees. The nationality of these employees is immaterial. Even if the UK were to make an exit contribution based on the proportion of UK nationals employed, and if the EU’s calculation of a total actuarial ability of €63.8 billion is right—the Bruegel Institute puts it much lower than that—it would not amount to more than a handful of billion euros.

[Lord Davies of Stamford]

Does the noble Lord agree that there are two quite separate issues here? One is potential liability for pensions to be paid—there, I rather agree with the noble Lord’s assessment. The second issue, which is quite specific to this instance of a country leaving the European Union, is the effect on British national employees of the European institutions, who will lose their jobs because it is a condition of their employment that they are a citizen of an EU member state. They will cease to be on the day on which we leave the European Union. They will therefore be fired and have to be given redundancy payments. Do we not have the moral responsibility of making sure that those payments are made? We cannot expect our partners to pay those sums of money, and we certainly cannot expect those employees who are fired for no better reason than their nationality not to receive proper compensation.

[Lord Butler of Brockwell]

With respect, I do not take that view. These are employees of the EU and its institutions. If they are fired for whatever reason, their redundancy payment and severance terms will be determined by their contract and negotiation with the EU and the EU institutions. That does not seem to me a matter for which the UK has a liability.

I again agree with the noble Lord, Lord Thomas, about the other side of the balance sheet—namely, the EU’s assets. I shall not discuss those in any detail, because I doubt whether the EU would agree to distribution of these to a country departing from the EU any more than it would require a contribution as an entry fee from a country acceding. One exception to that is the UK’s stake in the European Investment Bank which, if it has to be surrendered, could be worth anything from €3.5 billion to €10 billion to the UK.

Unless there are other elements of a claim for an exit payment which neither the EU Committee nor others have thought of, it seems clear to me that any reasonable claim that can be made will not amount to anything like the €60 billion figure attributed to M. Barnier and his team. It follows that, leaving aside the legal aspects, UK negotiators do not have a great deal to fear from a negotiation on this subject. In a reasonable world, it should be possible to make sufficient progress to open the way to negotiations on a future trade relationship.

There is one final piece of advice that I would give—again, this point was made by the noble Lord, Lord Thomas. By all means, let us seek to reach agreement on the principles of an exit payment and a future financial relationship, but it would be unwise to agree the details, the actual figure, until the principles of a trade relationship are also agreed. This is an area where, whatever the sequence of the negotiations, nothing should be agreed until everything is agreed.

Parliamentary Proceedings: Statistics

Lord Butler of Brockwell Excerpts

Wednesday 18th January 2017 Lords Chamber

Asked by

[Lord Butler of Brockwell]

To ask Her Majesty’s Government what steps they are planning to take to include statistics on the time spent on parliamentary proceedings on each Part of an Act in the Explanatory Notes on Acts of Parliament.

[Lord Butler of Brockwell (CB)]

My Lords, I start by confessing that behind this dry request to the Government for statistics lies an ulterior motive. However, it is one that should commend itself to all true parliamentarians. The suggestion in the Question is one I owe to Daniel Greenberg, a former parliamentary counsel and a campaigner for high legislative standards. I declare a personal interest as a member of the executive committee of the Better Government Initiative. I am very grateful to the most distinguished galère of participants for giving up their dinner to take part in this short debate, which I attribute to the general issue of the importance of our parliamentary legislative processes—particularly relevant as we approach the challenges of Brexit.

Making law is central to our job as parliamentarians, but it is not a job that the Executive always helps Parliament to do well, although I think we all feel that the House of Lords does it more thoroughly than the House of Commons. Even so, the results are not reassuring. There is a widespread feeling that, under pressure from the Executive, Parliament makes too much law. To give one illustration, in 2010, legislation covering 2,700 pages was added to the statute book. This was more than three times the amount of legislation passed 50 years before. That takes no account of all the guidance and other notes issued to specify the application of such legislation.

So much of this legislation is unsatisfactory. Some time ago I asked a Question about how many Acts passed by Parliament between 2005 and 2010 had never been brought into effect. The answer was that part or all of 77 Acts passed by 15 departments had never been brought into effect, despite being passed by Parliament. They had been found to be impracticable or had been overtaken by second thoughts.

It should be the job of Parliament to prevent or improve such defective legislation, but in truth Parliament is overwhelmed. Your Lordships’ House does its best, but one sometimes feels that, with the introduction of programme orders and family friendly hours, the House of Commons has virtually given up. To take one particularly flagrant example, the Finance Act 2005 contains 106 sections and 11 schedules, covering 202 pages of legislation relating to income and corporation tax, trusts, film relief, stamp duty and various anti-avoidance measures. It was passed by the House of Commons in four hours and two minutes of one day and by the House of Lords in 40 minutes on the following day. Admittedly, this was in the rush before a Dissolution, but that is surely no excuse for allowing complicated legislation, affecting the lives of citizens, to pass with such blithe lack of detailed scrutiny.

To take another more recent example, the Immigration Bill in the last Session started in the Commons with 56 clauses, eight schedules and 107 pages. It left the Commons with 65 clauses, 12 schedules and 168 pages. When the guillotine fell at the end of Report, eight new clauses, one new schedule and 10 amendments were added to the Bill with no debate whatever.

There are honourable exceptions. I have spoken in this House of my admiration of the process to which the then Investigatory Powers Bill was subjected. This included three reports by independent bodies, pre-legislative scrutiny of a draft Bill, and many hours of detailed scrutiny in the Lords and Commons. But that was the exception.

This Question asks whether the Government, when publishing—as they do—Explanatory Notes on Acts of Parliament after they are passed, will include the parliamentary time spent by each House of Parliament on each part of the Bill. These post Royal Assent notes already include a schedule of Hansard references for the different stages of the Bill, and, as we know, Hansard shows the times at which debates start and conclude. This information is readily available. The House of Commons already publishes such information for each Bill in its sessional returns, but that information is lost in a plethora of other information. The House of Lords’ statistics on business and membership include time spent on the various stages of Bills, but in aggregate, not for individual Bills.

The Cabinet Office recently introduced a new format for these Explanatory Notes, intended to be simpler and easier to navigate, but that format does not include the time spent on each stage of parliamentary proceedings. It can be easily added. I should also like the information to include new provisions added during each Bill’s process without debate.

I repeat that this is purely factual information, already gathered and easily available. The purpose of publishing it is, of course, to bring to light where parliamentary scrutiny has been inadequate and, by doing so, to encourage more effective procedures. I believe that neither government nor Parliament would want it to be shown that legislation had been passed by Parliament with ineffective scrutiny. If the result was that more parliamentary time was given to a smaller volume of legislation, that would be no bad thing.

This is only one small contribution to improving parliamentary scrutiny of legislation, on which I am delighted that the Constitution Committee of your Lordships’ House is currently conducting a major inquiry. It is practicable and a virtually costless change simply in the method of publication of material already collected.

I find it difficult to envisage how the Government could refuse a request to publish this readily available information in this more convenient form. I suppose that I could always get it by putting down a Parliamentary Question after every Act received Royal Assent, but that would give everybody more trouble and I hope that I will not have to.

House of Lords Act 1999 (Amendment) Bill [HL]

Lord Butler of Brockwell Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 9th December 2016 Lords Chamber

[The Earl of Erroll (CB)]

My Lords, I wish to make a quick point and not detain noble Lords. This series of amendments—from Amendment 5 onwards—is about trying to modify the electoral system to make it more sensible. That is something I do not object to at all. If one wants to have a debate about the hereditary Peers election system, one should probably at some point do something. I am not sure that this Bill is the right place to do it but there is an effort here to have a more sensible system. The reason I voted previously in the way that I did was because until we remove the power of the head of the Executive—in other words, the Prime Minister—to appoint everyone, either directly or indirectly, to the Chamber that is passing laws to control that process, I think we must resist any reform. If you change the powers of the Prime Minister to appoint people to the Lords, then I am with you and we can move forward as a democracy.

[Lord Butler of Brockwell (CB)]

My Lords, the noble Lord, Lord Trefgarne, has asked for an assurance from the Minister. She will correct me if I am wrong, but I think that she has given the assurance that the Government will not let this Bill pass, and that if it did pass in your Lordships’ House, the Government would not allow it to pass in the House of Commons. If the Minister will repeat that, I think that we can bring this procedure, which does no credit to this House, to an end.

[Baroness Chisholm of Owlpen]

My Lords, I think noble Lords will understand that I cannot give assurances about what happens in the other place; I can only state from this Dispatch Box the Government’s position at the moment.

[Lord Butler of Brockwell]

My Lords, surely, if the noble Baroness gives an assurance on the Government’s position, that will determine what happens in another place.

[Baroness Chisholm of Owlpen]

I have nothing to add to what I said earlier.

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.

Chilcot Inquiry

Lord Butler of Brockwell Excerpts

Thursday 22nd October 2015 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I start by following the noble Lord, Lord Luce, in making a brief reference to Lord Howe, whose funeral was today. I would have liked to attend that funeral, but I decided not to because I felt that I should take part in this debate. However, seeing the noble Lord, Lord Cormack, in his place, who attended the funeral, I perhaps made the wrong choice, but I do not think I could have been sure of doing it. I had the privilege of knowing Lord Howe well from 1979, when he became Chancellor of the Exchequer. He was a major political figure and a great public servant. The noble Baroness, Lady Howe, and his family have been very much in my thoughts today.

I thank the noble and learned Lord, Lord Morris, for giving us the opportunity to have this debate. For the most part it will have given deserved comfort to Sir John Chilcot and his team because very many supportive things have been said. I think that the noble and learned Lord, Lord Morris, made it clear in his remarks that his suggestion that the committee should now be discharged was really a vehicle for the debate rather than a suggestion that he wanted the Government to take seriously. Many speakers have referred to the sense of frustration, which I am sure is shared by Sir John Chilcot and the members of the inquiry itself, that it has taken so long. But although the precise timing of the finish has not yet been specified by Sir John and the team, it is now in sight. To dissolve the committee and to produce a report which is only 90% baked would go a very long way towards wasting all the effort and the resources which have gone into the report so far. It would deny satisfaction to those who have been waiting for a full conclusion on the matters which are of so much concern to so many people, particularly those who lost loved ones in the war. It would require a gigantic learning curve for those who would be charged with taking up the task of producing an interim report, and it would almost certainly take longer than allowing the present team to conclude its task.

There has been much reference, rightly, to the problems which the inquiry has faced. First, as has been said, its terms of reference, settled in the dying days of the last Labour Government, I think in haste and under pressure, were ridiculously wide. They covered everything that happened, both politically and militarily, between July 2001 and 2009. The mind boggles at the number of documents and the number of people involved during that period. In the review which I led into intelligence on weapons of mass destruction, on Iraq alone there were many thousand intelligence reports. The number of documents and the number of people in this case must be many multiples of that. Then, of course, there is also the question of the confidential exchanges with allies, particularly the United States, which has been referred to. That is not a straightforward matter. My sympathies are, as noble Lords might expect, with the Cabinet Secretary in his difficulties over that because, if the President of the United States cannot speak frankly to the Prime Minister of Britain and expect those confidences to be preserved, future presidents will not do so. So that has been a genuine problem and, if I may say so, trying to deal with United States Administrations over the release of papers is also not a matter that you can conduct quickly, as I have found in my experience. Then there is the question of the Maxwellisation process and fair treatment of the people who were criticised. That, no doubt, led to more documents, which had to be accessed and assessed. And so the problem has gone on.

Whatever lessons the inquiry teaches us about the Iraq war, there are, as has been said, lessons to be learned about setting up inquiries of this sort. During my time in Government, I was involved in setting up inquiries and since then I have been set up myself, if that is the right term. I say to the noble Baroness, Lady Falkner—I am sure other people who have conducted inquiries would share the view—one does not often get the chance to discuss the job description before an inquiry is announced.

When an inquiry is being set up, there are huge pressures on the Government to widen the terms of reference to cover every angle. If the Government wish to confine the terms of reference, they risk being accused of covering up. I am particularly glad to see the noble and learned Lord, Lord Scott, in his place because I was concerned about the setting up of the arms-to-Iraq inquiry. I remember, vividly, that the Government were concerned about the charge that, by bringing a prosecution against Matrix Churchill, they had tried to put innocent people in jail. That was the subject which prompted the inquiry. The Opposition pressed, understandably, for it to be widened to cover the whole subject of the export of arms. The Government, because they did not want to give the impression they had anything to hide, agreed to that and the whole subject was opened up. An inquiry which they had expected to take three months—I do not know what the noble and learned Lord, Lord Scott expected, I have not asked him—took three and a half years to cover that very big subject.

The experience of the Chilcot inquiry shows that when we press for inquiries to be set up we should be careful what we wish for. In this case, it is a very big subject and it deserves proper treatment. If the inquiry has taken the time it has taken, I think we should judge it by its outcome and be patient until it is delivered.

Constitution: Gracious Speech

Lord Butler of Brockwell Excerpts

Thursday 25th June 2015 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, having missed the opportunity to take part in the third day of the debate on the gracious Speech, I welcome the chance to offer my two pennyworth—or rather seven minutes’ worth—today on this major part of the Government’s agenda for the year ahead, although I am not as censorious of the Government’s proposals as the noble Lord, Lord Wills.

It is a paradox that in a Queen’s Speech of which the avowed theme was “one nation” the Government should be doing so much to fragment power in the United Kingdom. Nevertheless, I welcome the direction of march, as well as many of the individual measures in the Queen’s Speech. I have never believed that the man in Whitehall knows best. On the contrary, I believe that services are best delivered by empowering those nearest to the point of delivering them. Empowering managers and recognising local diversity was the theme of the Civil Service reform programme, Next Steps, which I led for 10 years as head of the Civil Service.

I sympathise with those speakers in the debate on the gracious Speech who looked at the variety of constitutional measures in the Government’s programme and yearned for a unifying theme. The noble Baroness, Lady Kennedy, made a similar point. Nevertheless, I do not support the notion that these measures should be delayed pending a constitutional convention or commission to give logic and consistency to the reform programme. For one thing, there are pledges that need to be delivered. We may feel that the vows made to the people of Scotland in the days before the independence referendum were made in precipitate haste. I remind the noble Lord, Lord Wills, that they were made at the prompting of the former leader of his party. Nevertheless, they were made with the agreement of all parties and the Government are honour-bound to deliver them.

I believe that the Smith commission—despite the fact that it, too, had to act under great pressure—did a good job in producing a package that could be acted on. There will be matters that Parliament will need to look at closely in legislating for that package but the Government are nevertheless right to press ahead with implementing it. Similarly, the Government are right to press ahead with legislation to implement the Stormont agreement for Northern Ireland and the St David’s Day agreement for Wales. I welcome the intentions underlying the Cities and Local Government Devolution Bill, which is currently being debated in your Lordships’ House.

Then there are the proposals about English votes for English laws, which the noble Lord, Lord Wills, said were prompted by the political interests of the Conservative Party. There is no entirely logical answer to the West Lothian question. Nevertheless, it is a nettle which has to be grasped. It would have been made even more urgent if the last election had produced a Government who had no majority in England and Wales, and who would only have been able to pass laws restricted to England and Wales through Scottish votes. The fact that this so easily could have happened underlines the need to find some arrangement which reconciles the right of English and Welsh MPs to determine laws affecting their own country, with the role of the Westminster Parliament to legislate for the United Kingdom as a whole. The Government have produced proposals to achieve that balance. I do not agree with the noble Lord, Lord Wills, that these are simply motivated by the political interests of the Conservative Party but good will is going to be needed from all parties to reach a reasonable outcome, recognising and balancing the undoubted rights of all parties to legislate on behalf of the United Kingdom.

I have not spoken about the British Bill of Rights or the referendum on EU membership. Nevertheless, this is a formidable programme of constitutional change. We should not postpone it while we set up a constitutional convention designed to produce a logical and lasting framework. The British constitution has always developed pragmatically. We may feel that at this moment it is developing with precipitate haste but stasis is not an option. This would be absolutely the wrong time to propose the chimera of a written constitution. There are too many moving parts. Nevertheless, this is very important and major stuff, as the noble Baroness, Lady Kennedy, said.

The role of Parliament in this coming Session will be crucial in dealing with this programme of constitutional change. Both Houses will need to look at and debate the details of these changes with the greatest possible care. We have a very heavy responsibility and we will need the advice of our Select Committees. I believe that the Government abolished the Political and Constitutional Reform Select Committee in another place at entirely the wrong time. Nevertheless, the Public Administration Select Committee has been given that role, and it will have a very important part in this. In this House, we are fortunate in having the Constitution Committee, with a very distinguished membership. That Select Committee will have a very important role in advising us, and the House as a whole will have a major part to play in the months ahead.

Chilcot Inquiry

Lord Butler of Brockwell Excerpts

Wednesday 28th January 2015 Lords Chamber

[Lord Wallace of Saltaire]

There is no necessary relationship between those inquiries which are judge led and those which are time limited. The noble Lord will recall that the Saville inquiry took 12 years. The question of timeliness is very difficult. I think that part of the problem for the Chilcot inquiry has been that the number of documents to be examined, then considered, then declassified and then in some cases to be negotiated on over access with an allied Government was much larger than was originally anticipated. It would probably have helped if a larger staff had assisted at that stage in the inquiry.

[Lord Butler of Brockwell (CB)]

My Lords, the terms of reference of the Chilcot inquiry covered everything that happened both politically and militarily between 2001 and 2009. Is not one of the lessons to be learnt that more consideration should be given to the breadth of terms of reference of future inquiries?

[Lord Wallace of Saltaire]

My Lords, I entirely agree with that. It is a huge inquiry, which is one reason why it has taken so long. Perhaps the noble Lord has seen Sir John Chilcot’s letter of 20 January in which he said that they had served longer on the inquiry than any of them had anticipated. It has been longer than they expected. One of the issues for the inquiry on historical child abuse currently being set up is that the number of cases over a very large number of years that it is being asked to cover is almost daunting for an inquiry of that sort.

House of Lords (Expulsion and Suspension) Bill [HL]

Lord Butler of Brockwell Excerpts

Friday 24th October 2014 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I add my voice to those who have supported the Bill. I do so briefly because I know that at this time on a Friday afternoon your Lordships prefer brevity to expansiveness.

This Bill carries forward what the noble Lord, Lord Steel of Aikwood, acknowledged at the Second Reading of what became the House of Lords Reform Act was unfinished business in that Bill. It gives the House more flexible powers to determine the circumstances in which Peers can be suspended or expelled. I can see no reason why the Government should not support and facilitate this Bill. I hope that the Minister will be able to tell us that the Government will indeed support it. If they do not, I think the only reason can be that they are not willing to facilitate any further reform of the House of Lords until more expansive, more ambitious reforms can be introduced. If that is the attitude of the Government, I deplore it. If the Government wish to put a standstill on further measures of incremental reform, they should also put a standstill on making the position of this House worse by more political appointments between now and the general election.

I do not want to personalise this Bill, but the fact that it has been introduced by the noble Baroness, Lady Hayman, a former Lord Speaker of the House, is a particular reason why the Government should give it significance and support it. I cannot resist saying that many of us in this House supported the right of the Leader of the House to be a full member of the Cabinet. In our debates on this matter, she said that even without that status she would support and champion the interests of the House. If there is resistance in the Cabinet to facilitating the Bill, this is an opportunity for her to fulfil that promise to the House, and I hope very much that she will do so.

Coalition Government: Constitution Committee Report

Lord Butler of Brockwell Excerpts

Tuesday 13th May 2014 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I congratulate the Constitution Committee and the noble Baroness, Lady Jay, on this excellent report. If it is to be her swan-song as chairman of the committee, it is a fitting culmination of a series of reports by the committee, which have been very valuable and, in this case, raise issues that need to be considered before the next general election—which I think it is more probable than some previous speakers have thought may result in another coalition.

As the noble Baroness said, the present coalition has changed our constitutional conventions—I was glad to hear her say constitutional conventions, not constitution—in some significant and surprising ways. The first example, to which reference has not been made tonight, was, of course, the Fixed-term Parliaments Act. I opposed this in your Lordships’ House. If the Conservatives and Liberal Democrats chose to make an agreement about the timing of the next general election, that was their choice, but a number of us felt that they had no need or right to bind future Governments. Now we are seeing the problems caused by the fixed term. Having exhausted the measures in the coalition agreement, the Government are finding it difficult to agree on new policies—and they will find it increasingly difficult to do so as they seek to demonstrate their separateness in the year leading up to the general election.

As a result, we are already seeing that Parliament has very thin gruel to work on. We await the programme in the Queen’s Speech for the next Session with no lively expectation that it will be substantial. Meanwhile the Government are looking divided and weak, more concerned with washing their dirty linen in public than with running the country. If I may say to the noble Baroness, Lady Falkner, we have heard a certain amount of that sort of recrimination already in the speeches tonight—and that is nothing compared with what we will get over the course of the next year. I think a case could be made that the country would have been better served by bringing this Parliament to an end now so that a new Government could be elected with a fresh mandate.

I want to concentrate the remainder of my remarks on preparations for the next Government and the role of the Civil Service in the lead-up to the general elections, to which reference has been made. When the noble Lord, Lord O’Donnell, and I gave evidence to the Constitution Committee in its preparation of this report, we emphasised two things. First, there should be a level playing field between all three main parties, with their being treated equally and having equal access to advice. The noble Baroness, Lady Falkner, referred to that. Secondly, we suggested that the scope of the confidential discussions between the main political parties and the Civil Service should be extended somewhat so that the Civil Service could give advice on the parties’ plans, particularly on the practicability of their implementation, and that the Civil Service should not just be in listening mode.

The Institute for Government has recently produced two very sensible reports on this subject, in which it makes similar points. It has drawn attention to the dilemma in which civil servants may find themselves when there are two main parties in government and one main party in opposition. The two parties in government will have diverging approaches to policy as the election draws near—and, as has been said, they may want to keep some of their ideas confidential from their partners in government. The Institute for Government rightly said that civil servants in this situation need clear guidance on how to deal with that problem. What should that guidance say?

During the period leading up to the general election, the Government must continue to govern and are entitled to full assistance from the Civil Service on any matter of government policy. So it seems to me that a clear distinction needs to be made between what the Government continue to do as government and what the political parties are preparing as parties. In other words, the Civil Service must continue to give full support to what is decided by the Government as matters of collective responsibility, and that requires making it quite clear what those matters are that have been decided by collective responsibility. But when the parties go their separate ways in preparing proposals for their manifestos, the Civil Service should act as it normally would in relation to political parties in pre-election mode. This should not mean that it can give no advice on party proposals; as I said, there would be advantage in their being given such advice, particularly on practicability. But all three political parties should be treated in this respect in the same way.

As far as the parties within the Government are concerned, this will put extra weight on distinguishing between what decisions are made by collective responsibility and what are not. Clear procedures need to be put in place to distinguish between the two. It has been reported that the Prime Minister has decided that confidential discussions between the Civil Service and the Opposition can start six months before polling day—namely, in the autumn. So there is plenty of time for this guidance to be put in place.

Before the last general election, as has been said, the Cabinet Office, under the leadership of the noble Lord, Lord O’Donnell, performed a very useful service in publishing a draft chapter for the Cabinet Office manual on the rules of the game in the event of no party gaining an overall majority in the election. That publication in draft provided an opportunity for outside observers, including Select Committees, to comment on those rules of the game. This achieved a much greater understanding and acceptance of the conventions than there would otherwise have been, and that was very valuable in the uncertain days immediately following the general election.

I hope that the Cabinet Office will similarly publish draft guidance for consultation on the role of the Civil Service in the lead-up to the general election. If that is to be done, and the discussions are to start in October, that cannot be long delayed now. Perhaps the Minister in replying will be able to give the House some information on what the Government intend in that respect—information that would have been included, no doubt, in the Government’s formal response to the committee’s report but which now needs to be made public.