Strathclyde Review

Lord Cunningham of Felling Excerpts

Wednesday 13th January 2016 Lords Chamber

[Lord Cunningham of Felling (Lab)]

My Lords, first, I apologise for the state of my voice. Secondly, as the first speaker from this side of the House to follow the incisive and commanding maiden speech of my noble friend Lord Darling, I think I speak for the whole House when I say that we look forward to hearing him on many more occasions.

I begin by quoting from the preface of the report of the noble Lord, Lord Strathclyde, in which he states:

“Conventions exist because they provide a basis for orderly government. They will survive only so long as there is a continued understanding of why they were originally brought into being. But when they go, Parliament and the people we serve will, I believe, come to miss their value”.

Yet he goes on to recommend just that—the abolition of the convention—in his report. I make it clear to your Lordships’ House that statutory obligations are not the same as conventions; they are entirely different. Therefore, the convention would go if the only one of the recommendations of the noble Lord, Lord Strathclyde, worth considering—that is the third one: I do not think the other two are worth considering at all—were enacted just as it stands, and we would be left in almost as big a morass of uncertainty as, apparently, some people claim we are now. I am sure that none of us wants that.

The noble Lord, Lord Strathclyde, has adopted many different positions on the convention. In 1999, he declared that it was deceased. He said that the convention on statutory instruments was dead. By 2005, he had given it the kiss of life, and said that it had been,

“surprisingly robust over the decades”.—[Official Report, 26/01/2005; col. 1375.]

Those two statements cannot be reconciled. However, the reality is that, whatever his personal views, between the votes on the Greater London Authority orders in 2000 and the end of the 2004-05 Session, this House divided nine times on Motions potentially fatal to a statutory instrument. On three of those nine occasions, the Motion to annul was moved from the opposition Dispatch Box, so there is no doubt at all—as the record shows—that whatever any individual thought about the convention, there was an attempt to use it on those occasions. There were no cries of a constitutional crisis then. There were five rejections in all under this convention in about five decades; three of them, incidentally, were defeats for Labour Governments. One was a defeat for the coalition Government and one—the most recent one—was a defeat for the current Administration.

This is not to say that we do not face serious problems with statutory instruments in this House; of course, it would be foolish to deny that. However, let us be clear: if the number of statutory instruments coming to this House was cut by 50%, there would still be occasions on which strong opposition to some or other of those instruments would arise. Therefore, cutting the number of statutory instruments—I would be in favour of that and I certainly share the view of the noble Lord, Lord Strathclyde, on that, as, I am sure, do most Members of your Lordships’ House—would not obviate the problem of this House wanting to disagree with however many statutory instruments remained.

In 2006, foreseeing some of these problems, or perhaps just recognising them rather late in the day, the then Labour Government set up the Joint Committee on Conventions, which I had the honour and privilege to chair. The remarkable thing about the committee—which was made up of Members on all sides of the House, here and in the Commons—was that all its decisions and recommendations were approved unanimously. There was not a single vote in the whole of the committee’s deliberations. Therefore, the report was unanimous, which, in turn, was unanimously approved by this House and the other place. However, here we are, 10 years later, asking ourselves more questions about how we operate. The report, which we deliberately entitled Conventions of the UK Parliament, has stood the test of time. If we want to re-examine these matters—I am certainly not against that—it is surely not sensible to do it in a piecemeal way on the back of an angry, intemperate reaction to one defeat of the Government in this House. That is not the way we should deal with this problem. Frankly, it is simply not credible to suggest that this House has abused the use of the convention on statutory instruments in any way at all. It has not exceeded its powers and I do not believe that statutory codification of these issues will improve the working of the House or improve our relations with the other place.

In reality, the Government have decided to strip this House of its ability to reject any statutory instrument because of the one defeat sustained in October last year. That strengthens the Government and the Executive against Parliament because, if it happens, it will weaken not just this House but the position of the other place as well. That is not what we should be seeking to agree to, in my opinion. The reality is—I am overrunning my time, I apologise—that this House has a far better record of scrutiny of statutory instruments than the other place. I believe that it is time we looked at this, as previous speakers have indicated, in a far more comprehensive, effective and collective way than simply to accept the diktats of the Government because of their annoyance at their defeat.

--- Later in debate ---

[Baroness Stowell of Beeston]

I say to the noble Lord that the Joint Committee on Conventions of 2006 was clearly highly respected. It was a very significant committee, and its findings and work have really stood the test of time. The problem we have is that the convention that was set out there and reinforced by the Joint Committee—I am afraid that this is the problem, because we disagree and this is what we are having to address—is no longer operating in the way that it was agreed it should operate.

[Lord Cunningham of Felling]

I am grateful to the noble Baroness, and I apologise again for the state of my voice, but what she says is not correct. The committee was absolutely unanimous in endorsing the conventions. Both she and her noble friend Lord Strathclyde have introduced into the argument just today that somehow one of these conventions is contested. That is just not true. The conventions have been upheld and adhered to, and on 26 October no convention was broken.

[Baroness Stowell of Beeston]

I am going to move on, to make some progress. I do not disagree with what the noble Lord says about his committee of 2006. I do not want to dwell so much on October—I want us to look forward—but I am saying this about the events of October. It is all very well for the noble Baroness opposite to groan but, by agreeing to those Motions last October, this House said that it would decline to consider something until a set of demands had been met by the Government. That is what it voted for, and that had never happened before. That is why I assert that that kind of arrangement means that the convention as it exists, for this part of the agreement, is now difficult. That is the problem. Let me move on.

--- Later in debate ---

[Baroness Stowell of Beeston]

My precise point, which my noble friend made when he introduced today’s debate, is that, in practice, this House voted for something that had a fatal effect, and it is therefore no longer possible for us to say that our understanding of how that convention works continues. I shall give way one further time to the noble Lord and then I really would like to move on.

[Lord Cunningham of Felling]

I am grateful to the noble Baroness for giving way again, but she just again said something that is simply not correct. She said, in respect of the Division on 26 October, that something like that had not happened before. That is simply not correct. Between 1968 and 2005, there were five such Motions, three against a Labour Government, which were carried in this House, so it has happened before.

[Baroness Stowell of Beeston]

Okay, I am just going to make one simple point and then I really will move on. We are disagreeing because what happened previously were fatal Motions that we all understood to be fatal. On the Motions tabled in October, one side of this House is arguing that they were not fatal, the other side is arguing that they were. I am afraid that that disagreement is what has led us to have to ask my noble friend Lord Strathclyde to look at this issue and come forward with his report. He is trying to bring forward something which addresses the need of this House that has been outlined since 2000, when my noble friend Lord Wakeham first looked at this matter.

This House is influential when we act in a constructive and nonpartisan way. We do not need vetoes. The impact and effect that we have on legislation is very powerful, and we continue to have a very important role in our effect on the decisions that the Government make in legislation.

Many noble Lords said that this House should give up a veto only if there was some kind of trade-off for the Government to review how they use secondary legislation. This is a very important point. The speeches from the noble and learned Lord, Lord Judge, and my noble friend Lady Fookes were very powerful and they make a really important point. I said the same to the noble Lord, Lord Richard, when I delivered the Statement before Christmas. I am grateful to the noble and learned Lord and the noble Lord, Lord Hunt, for acknowledging that any criticism that Parliament may have of Governments for the use of secondary legislation is not new.

I also say to the House that I do not think that things are quite as bad as the House suggests in terms of our approach to secondary legislation—I do not just mean the Government, I mean the House as a whole. There is always room for improvement, but the number of SIs over the past 20 years has been pretty steady.

The committees of this House are very powerful and respected. The committee chaired by my noble friend Lady Fookes does a very good job of scrutinising delegated powers in primary legislation. Very often, the Government respond constructively to its recommendations. In the work that this House does on primary legislation, a lot of the changes that it makes are around the powers. My noble friend Lady Fookes has put forward some good arguments and ideas about how we can improve within government, and I will certainly take those away.

We should not forget that when SIs come into Parliament they are scrutinised by a Joint Committee of both Houses, as well as by the Secondary Legislation Scrutiny Committee chaired by my noble friend Lord Trefgarne. The tax credit SIs went through that JCSI, which is chaired by a Labour Member of the other place. In its report, the JCSI did not raise any questions or concerns about that tax credit SI.

Some have argued for a period of delay. Some have argued that it would be essential for us to ensure that we would introduce debates for the House of Commons when it considers secondary legislation. What is important, interesting and helpful to me is that, although there are different views being expressed today about how to operate without a veto, there are many noble Lords at least discussing the idea of not having a veto but having a new power instead of the veto. I am grateful to noble Lords for that response.

As I draw to a close, noble Lords have raised questions about a Joint Committee. I have already said that the work of the Joint Committee in 2006 was incredibly powerful, but I do not believe that right now we need another Joint Committee. We need to look at the options that have been put forward by my noble friend, but I know that my noble friend Lord Trefgarne and his committee have committed to looking at what has been proposed, and I am grateful to him.

As for the Commons looking at this, it is clearly for the other place to decide how it should scrutinise secondary legislation. However, as my noble friend Lord Crickhowell has identified, the Public Administration and Constitutional Affairs Select Committee in the other place has committed to look at what has been put forward by my noble friend Lord Strathclyde. It has a hearing next week at which he is giving evidence, so the Commons is also getting on with its consideration of this arrangement.