Secondary Legislation Scrutiny Committee

Lord Kennedy of Southwark Excerpts

Tuesday 31st January 2023 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I am extremely grateful to my noble friend the Senior Deputy Speaker for his explanation of what has gone before and I want to place on record from the beginning his courtesy to me and his openness, for which I am extremely grateful. I had hoped to be able to table this amendment in the name of the Secondary Legislation Scrutiny Committee as a whole, but that is not permissible under the rules of your Lordships’ House, so it is in my name as chairman. However, I want the House to be aware that it is a unanimous request from every member of the committee. Seven of them are listed in the paper before noble Lords, and the four who are not listed are the noble Lord, Lord Powell, from the Cross Benches, the noble Lords, Lord Rowlands and Lord Hutton, from the Opposition, and the noble Lord, Lord De Mauley, from the Government Benches.

I emphasise that because I want the House to understand that we are not revolutionaries; we are not here to try to overthrow all the procedures of the House. But, as a group, we believe very strongly that your Lordships’ role in scrutinising and holding the Government of the day to account is critical to the performance of our House. I am afraid that we on the SLSC believe, with due respect to the Committee of Selection, that on this occasion process, the administrative operation of the House, has trumped purpose, the effective operation of our committee. We believe that this is the wrong way round. Purpose and performance should come before process.

Before I explain that in a little more detail, I want to make it clear what this amendment is not about. First, we do not argue that we are uniquely qualified to sit on the SLSC—far from it. We have no doubt about the estimable qualities of those are going to take our place. Speaking personally, I have no doubt that my noble friend Lord Hunt of Wirral, who is proposed as my successor as chairman, will carry out the role of committee chair every bit as well as, and better than, I have.

Secondly, this amendment is not an attack on the principle of rotation. All committees need regular injections of new blood to keep their thinking and their approach fresh and up to date. Thirdly, this amendment is not an attack on the decision of the House to change the measurement of time served by an individual on the committee from parliamentary Sessions to calendar years. That must have been a good decision, because calendar years are fixed and parliamentary Sessions are not. But the switch from one method to the other has had a series of dreaded “unforeseen consequences”, with which all Members of your Lordships’ House are familiar, as regards the rotation of committee membership.

I know we are not alone in our concerns. Other committee chairs may wish to add their perspectives. But the impact on the SLSC is particularly challenging. Today, the House will rotate off seven of the 11 members of the committee—two-thirds, including the chairman. This time next year, the House will rotate off one—just one. Two years from now, the House will rotate off the remaining three, and the following year, we will go back to seven again, this time including my noble friend Lord Hunt, whose term of office will have come to an end. Our committee respectfully suggests to the House that a “seven, one, three” rotation pattern is unlikely to enhance the effectiveness of our committee’s operation.

As the Senior Deputy Speaker said, we were in touch with him well in advance, because we saw this problem coming down the road. We met on 17 November, and he has been kind enough, as he has pointed out, to put our concerns before the Committee of Selection on two occasions at least, and we are very grateful for his and the committee’s involvement. He has mentioned our suggested remedy to transition between the two systems—on this occasion, and once only—which is that three people should be asked, not including the chairman, to serve one more year. So we would have “four, four, three”, and that would be an even pattern stretching into the future.

The Committee of Selection did not feel able to accept this solution. I ask myself why. I understand that the committee feels bound to implement the decision taken by the House to change the basis of management, whatever the result. It was put to me that this House would be angry if the Committee of Selection flouted its decision. Of course, the House did decide this course of action, but I doubt that any Member of your Lordships’ House had any idea of what the practical consequences would be for the rotation of the membership of the SLSC, and indeed other committees, when they decided to approve it. Indeed, if your Lordships had understood all the consequences of the decision, someone would have stood up and said words to the effect of, “Hang on, this is a bit drastic. I think we need to find a way to smooth the transition between the two systems”.

Importantly, the Liaison Committee of the House clearly even then thought there might be problems and difficulties with the transition shift. The fourth report from the Procedure and Privilege Committee, which recommended the changes in the rotation rule, states:

“There could be a case for providing a degree of flexibility in the three-year rotation rule when its rigid application would result in a large number of members of a committee being ‘rotated off’ simultaneously”.


I also note that the Companion at paragraph 11.14 states:

“The Committee of Selection may consider making ad hoc adjustments to the application of the rotation rule when needed.”


So, there are what could be described as escape hatches for the Committee of Selection if it wanted to use them.

I have two further points. The Committee of Selection was kind enough to write to me, to all members of our committee and now, I think, to all Members of the House, explaining the background to its decision. It said that

“six Committees are due to see at least 50% of their Lords members rotate off this January”.

I recognise the issue of fairness, which the Senior Deputy Speaker has raised. But I have to say I regard this statement as actually increasing my concerns about the way the committee rotations take place. I may be naive but, in all my career, I have never come across an organisation where it is argued that a 50% annual staff turnover will lead to a smoother and more effective operation of the organisation.

Finally, I will say a word on the particular position of the SLSC. The House knows that it is not the role of the committee to comment on the wisdom of any policy. That is for the Government of the day to justify, in due time, at the Dispatch Box. The committee’s job is to examine the way a policy has been implemented and to highlight points that the committee feels that the House or the wider public would be interested in. Many policy decisions result in not one but a series of regulations—for example, photo ID at the ballot box or changes to the student loans scheme. Knowledge of what has gone before is very important in improving the quality of scrutiny, as it is in our work to keep an eye on government departments when their performance, as regards regulation, has repeatedly fallen short of their statutory obligations.

To do all this, we need what is best called institutional memory: a clear recollection, among a sufficient number of members of the committee, of what has gone before. Institutional memory is not a static concept. That is why a proper degree of rotation is needed. It is also why new members of the committee, however experienced, can be compared with new batsmen coming to the crease: they need some time to play themselves in.

One person from the Committee of Selection suggested to me that this institutional memory resides not with the Members of your Lordships’ House on the committee but with the committee’s staff. I yield to no one in my admiration for the work of the staff of our House, but their job is to provide the facts. It is up to the committee to interpret what has been put before it.

We on the SLSC may be disappointed, but I hope we are realistic. The Committee of Selection has heard our representations and has rejected them, as it is perfectly entitled to do. It has made its choice of new members of the committee known and those individuals have been told. There is no way back from that. To propose a complete reversal would be both organisationally shambolic and personally insulting to a number of Members of your Lordships’ House. That ship has sailed, but we have a chance to reflect on what has happened. I cannot believe that anyone would wish to argue that we now find ourselves in a satisfactory, let alone ideal, situation.

This amendment accepts the status quo but asks the House to endorse a request to the Committee of Selection possibly to think again, in the light of the real- life outcomes of the present procedure of our committee and, perhaps, of other committees, with the view to have a target rotation of one-third of committee members every year; and to come back to the House with its views before the Summer Recess.

At the heart of this issue is whether purpose or performance—the work of the House—is more important than its process or administration. If your Lordships agree that the former is more important, you may be inclined to support the SLSC; if you do not, you will not. I beg to move.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I will not detain the House for long, but it would be useful to put some comments on the record. I fully endorse the comments made by the Senior Deputy Speaker and if the noble Lord, Lord Hodgson of Astley Abbotts, divides the House, I will vote against him.

I agree with the Senior Deputy Speaker that the new members of this committee are of the highest quality and expertise. They do an excellent job on behalf of the House. The noble Lord outlined the work of the committee he saw when he was a Minister, and I invite noble Lords to look at the names that the Senior Deputy Speaker has proposed. I am sure all will agree that these Members will discharge their duties diligently and effectively.

The Senior Deputy Speaker has outlined a way forward for the House, which I support. I hope the House will agree that, as Opposition Chief Whip, I am not in the business of trying to undermine or damage the House’s effectiveness in holding the Government to account. I hope that this is the way forward.

I am sure noble Lords will recognise that, when the Opposition table amendments, we often use the reports of the Secondary Legislation Scrutiny Committee, which outline deficiencies in the legislation proposed by the Government. We regularly put those forward. We often rely on the committee’s work. We know that it is important and does effective work. I believe that the noble Lord’s amendment is not needed: a way forward has been outlined. I invite the House not to agree with the amendment.